(1.) Heard learned counsel for the parties and perused the record. Instant revision has been filed against the judgment and decree dated 25.06.2010 passed by Judge Small Cause Court/District Judge, Nainital in SCC Suit No. 6 of 2008 'Smt. Savitri Uniyal and another vs. UP Handloom Corporation Ltd. and another' whereby the suit of the plaintiff for ejectment and mesne profit was decreed against the defendant/revisionists.
(2.) Brief facts, emerged out from the record, are that late Mr. B.D. Uniyal, husband of plaintiff No. 1 and father of plaintiff No. 2 (respondents herein) was the owner and landlord of the property No. 43, situate at Mall Road, Nainital, which is known as Uniyal Niketan, Mall Road, Nainital and after his death, the property is inherited by the plaintiffs. In the year 1985, late B.D. Uniyal let out two shops to the defendant No. 1/petitioner No. 1, having an area of 868 square feet, as single tenancy, for 20 years w.e.f. 16.05.1985 at the rate of Rs. 3/- per square feet. Accordingly, the rate of rent was Rs. 2,604/- per month apart from the liability of payment of taxes to the tune of Rs. 400/- per annum, subject to 10% enhancement in the existing rent after every 5 years. The tenancy was a fixed term tenancy for 20 years w.e.f. 16.05.1985 ending on 15.05.2005. The defendant No. 1 started Handloom business in the shops in question in the name of defendant No. 2. As the conduct of defendants has never been cooperative, because they never paid rent in time, and since the tenancy of defendant No. 1 was likely to expire on 15.05.2005, the plaintiff No. 1, before the said date, requested the defendant No. 1 to vacate the property on the expiry of fix term i.e. on 15.05.2005, but despite requests, the property in suit was not vacated nor its possession was handed over to the plaintiffs. It is further asserted that even after the expiry of fix period of tenancy, the plaintiffs requested the defendants to vacate the property in dispute, but they paid no heed to it. It is further asserted that the property in question is highly needed by the plaintiffs. It is further asserted that since the rent of disputed property was more than Rs. 2000/-, the U.P. Act No. 13 of 1972 is not attracted to it. It is further asserted that the defendants' possession over the disputed property, after expiry of fixed period i.e. on 15.05.2005, is illegal and unauthorized and they have no right to retain the same in any manner, as the tenancy of defendant No. 1 automatically came to an end on 15.05.2005 by efflux of time. It is asserted that the plaintiffs are entitled to a decree for ejectment of the defendants from the property in dispute and for recovery of its actual possession, inasmuch as, the plaintiffs are entitled to the recovery of mesne profits and damages for illegal use and occupation of the property in dispute. Rescinding the contents of the plaint averment, the defendants filed their written statement with the averment that two shops, situate in the ground floor of Uniyal Bhawan, were taken on rent in the year 1985 at the rate of Rs. 3/- per square feet per month and the rent of both the shops were separately fixed. It is stated that the shops are in separate tenancy of the defendants. It is pleaded that the defendants always paid the agreed rent in time, on the contrary, the plaintiffs in order to harass the defendants, refuge to take the rent and often returned the drafts of rent sent by the defendants. It is asserted in the written statement that no fixed terms tenancy had taken place between the predecessor of the plaintiffs and the defendants, therefore, no question arises of expiry of the tenancy of defendants on 15.05.2005. It is also stated that rent of each of the shops is less then Rs. 2,000/-, hence the property in question is governed by the provisions of U.P. Act No. 13 of 1972. It is further stated that possession of the defendants in the property in suit on 15.05.2005 or any other date, is legal and authorized and the defendants have every right to retain the property in question and even after 15.05.2005 the tenancy of the defendants will not come to an end. It is stated that the plaintiffs are only entitled to receive the rent of the premises in suit, to which they already refused, therefore no question arises of any mesne profit or damages against the defendants for alleged illegal use and occupation of the suit property. It is lastly averred in the written statement that the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. The parties, in support of their claim, led oral as well as documentary evidence. The Court below framed necessary issues and, thereafter, after hearing learned counsel for the parties the learned Judge, SCC, Nainital vide order dated 25.06.2010 decreed the suit, which is the order impugned in this revision.
(3.) I have heard Mr. K.S. Bora, Advocate for the revisionists, Mr. M.C. Pandey, Senior Advocate assisted by Mrs. Prabha Naithani, Advocate for the respondents and perused the record.;