K. Nath, J. - (1.) THE plaintiff -applicant Smt. Prem Lata Bhargava is the Owner -landlord of a building, Roop Narain Gupta, the defendant -opposite party is the tenant of the open roof of the building. The roof was leased out on 18 -12 -67 whereon the opposite party made certain permanent structures with the consent of the applicant. On 1 -5 -78 the plaintiff filed a small cause court suit for ejectment of the opposite party and for the recovery of arrears of rent from 1 -1 -78 to 30 -4 -78 as also for pendente lite and future damages. Among the various points raised by the opposite parties, benefit of Section 29A of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972 was sought. When the case was taken up for hearing on 18 -5 -84, a statement in the nature of settlement as contained in Annexure 1 to the counter affidavit in this revision, was made by the counsel for both the parties. The important features of this statement may be stated as follows: - - (i) Parties agreed that Section 29 -A of U.P. Act 13 of 1972 was applicable for the purposes of the suit. (ii) In view of sub -sections (1) and (2) of Section 29 -A aforesaid, rent payable by the opposite party was to be fixed at the rate of 10 per cent of the market value. (iii) The market value was to be determined in accordance with Section 29 -A(6) of the Act. (iv) The rent was to be fixed for the period from 1 -1 -78. (v) All other pleas were specifically given up.
(2.) AMONG the issues framed, issue No. 11 concerned determination of market value. Both the parties obtained the reports of the experts who are the retired Chief Engineers of the Government of U.P. and produced oral evidence. On a consideration of the evidence the lower court held the value of the land to be Rs. 2,96,215/ - and on that basis fixed the payable rate of rent to be 2,468/ - per month with effect from 1 -1 -78. The court below dismissed the suit on 29 -5 -84 for ejectment but decreed it for recovery of rent at the rate of Rs. 2,468/ - per month for the period from 1 -1 -78 to 30 -4 -78. During the pendency of this revision C.M. application No. 40(M) of 1985 was made requesting that the defendant -opposite party be directed to deposit a sum of Rs. 2,09,760/ - within 15 days being the amount payable according to the lower court decree for the period from 1 -1 -71 to 31st January, 1985. In the counter affidavit, it was pointed out that rent at the rate of Rs. 500/ - per month (the rate originally agreed between the parties prior to the finding of the suit) had been deposited in the lower court for the period from 1 -1 -76 to 30 -6 -84 and that the opposite party had always been willing ever since the decision of the lower court to pay the amount fixed by the lower court. It was also pointed out that revision itself is not maintainable. When these applications came up for hearing, it transpired that the matter involved in the applications substantially arose in the main revision itself. The main question relates to the application and effect of Section 29 -A of the U.P. Act 13 of 1972. The hearing of the matter, therefore, was postponed and it was indicated that the case itself was likely to be disposed of one merits. The learned counsel for both the parties have advanced the arguments -on the merits of the revision.
(3.) THE first point urged by the learned counsel for the applicant is that the determination of rent by the court below is erroneous because it has not considered the evidence and has based it on the mean of the amounts calculated by the two Engineer Experts, The contention cannot be accepted, The learned small cause court has discussed the evidence of both the parties in detail and has recorded sound reason for the rate fixed by him. Within the limit of the scope of a revision, it is not possible to re -analyse the evidence and determine the rate here.;