IQBAL AHMED Vs. SUDESH KUMARI
LAWS(UTN)-2013-7-22
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on July 02,2013

IQBAL AHMED Appellant
VERSUS
SUDESH KUMARI Respondents

JUDGEMENT

- (1.) This revision has been filed by the revisionist/ tenant against the order dated 27.03.2012 passed by 2nd F.T.C./Addl. District and Sessions Judge, Dehradun in Misc. Case No. 1 of 2011 whereby the restoration application moved by the revisionist seeking setting-aside the ex-parte judgment and order dated 21.07.2011 passed in S.C.C. Suit No. 3 of 2009 was rejected.
(2.) Precisely, the facts of the case, leading to filing of instant revision, are that on 15.01.2009, S.C.C. Suit No. 3 of 2009 titled as 'Smt. Sudesh Kumari vs. Iqbal Ahmad' was filed by the landlord/ respondent in the Court of Judge Small Causes Court/District Judge, Dehradun claiming thereby the arrears of rent, mesne profit, possession, arrears of electricity charges, interalia, with the averments that defendant was a month to month tenant in one shop forming part of property bearing no. 127/1, Nai Basti, Chakhuwala, Indira Colony, Dehradun on behalf of the plaintiff on a rent of Rs. 670/- per month besides Rs. 100/- per month towards electricity charges. It was stated that provisions of U.P. Act No. 13 of 1972 are not applicable to the said property. Tenancy of the defendant was terminated vide notice dated 10.12.2008 sent by registered A.D. Post, UPC and Courier, which was duly served upon the defendant on 11.12.2008. It was stated that the defendant has committed default in making payment of rent and electricity charges, inasmuch as, he has not paid the rent and electricity charges w.e.f. 01.02.2005. By the notice dated 10.12.2008, the defendant was asked to pay the arrears of rent, electricity charges and interest @ 9% per annum on the amount due and Rs. 2,500/- as the cost of the notice. Besides, the defendant was called upon to vacate and deliver the possession thereof to the plaintiff and on failure on the part of defendant, he would be liable to pay mesne profits @ Rs. 100/- per day. It was also stated that the defendant has illegally obtained independent electric connection. It was stated that the rent and electricity charges for the period prior to 11.01.2006 have become barred by time and the plaintiff, without giving up her rights, claims arrears of rent and electricity charges w.e.f. 12.01.2006. Since the defendant failed to comply with the notice, therefore the suit was instituted. Refuting the contents of the plaint, the defendant/revisionist filed written statement with the assertion that provisions of U.P. Act No. 13 of 1972 are applicable to the suit property, as the suit property was constructed 30 years before; the plaintiff is not the owner of the suit property; no right arise to the plaintiff to terminate the tenancy of the defendant and to evict him; there is no need to reply the notice, as proclaimed by the plaintiff; the plaintiff has disconnected the electricity connection and under the orders of this High Court, temporary electricity connection was granted to the defendant, therefore the plaintiff cannot claim electricity charges, as she herself had disconnected the electricity connection. It was also stated that the plaintiff is not the owner of the suit property, as she sold the said property vide registered sale deed dated 03.11.2006, therefore the plaintiff cannot claim for the rent from the date of sale i.e. 03.11.2006. It is also stated that the defendant had paid the rent to the plaintiff regarding the suit property, but she refused to issue any receipt thereof. It is stated that the plaintiff is not entitled to the cost of notice, mesne profit and the interest, as she is not the owner of the suit property. It is further stated that owner of the suit propertyPradeep Kumar had served the defendant with notice dated 09.03.2009 demanding him to pay the rent of the premises in occupation and has annexed copy of the sale deed alongwith the said notice and on receipt of said notice, the defendant paid the rent of the shop from November 2008 till October, 2015 i.e. for the period of 7 years amounting to Rs. 56,280/- to which the owner of the shop Mr. Pradeep Kumar issued receipt, thus there is no arrears of rent standing accrued against the defendant. It is stated that the suit is bad in the eyes of law and is liable to be dismissed. It is further asserted that the purchaser of the suit property Mr. Pradeep Kumar filed an impleadment application seeking his impleadment on the basis of sale deed dated 03.11.2006, which was rejected on the ground that said sale deed was declared null and void in O.S. No. 477 of 2009 on 21.01.2010 on the basis of compromise. In the meantime, due to absence of defendant/tenant, the transferee Court of 2nd F.T.C./Addl. District and Sessions Judge, Dehradun proceeded ex-parte against the defendant/tenant on 20.07.2010 without issuing any notice to the defendant/tenant and proceeded with the suit, which had culminated in the passing of ex-parte judgment and order dated 21.07.2011. The revisionist, on coming to know about the exparte judgment and decree, filed an application for setting-aside the same and for deciding the suit on merit. The plaintiff filed an application (7-C) for rejection of said application on the ground of noncompliance of Section 17 of Provincial Small Cause Court Act. Thereafter, the revisionist filed rejoinder and showed his readiness and willingness to furnish security as per the requirement of Section 17 of Provincial Small Cause Court Act. Small Cause Court allowed 7-C application of the plaintiff and rejected the application of revisionist. Hence this revision.
(3.) I have heard Mr. Siddhartha Singh, Advocate for the revisionist, Mr. Piyush Garg, Advocate for the respondent and perused the record.;


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