Rakesh Tiwari - (1.) -Heard counsel for the parties and perused the record.
(2.) THIS writ petition arises out of S.C.C. Suit No. 22 of 1993, filed by respondent No. 3 praying for eviction of the petitioner from the shop situated opposite Hathi Khana, Rampur for recovery of arrears of rent and damages. The reliefs sought by the petitioner were that- (a) That a decree for ejectment of the defendant from the shop in dispute detailed below kindly be passed and the actual vacant possession of the shop in dispute be delivered to the plaintiff after eviction of the defendant from the shop in dispute. (b) That a decree for recovery of Rs. 1,826 as arrears of rent be kindly passed in favour of the plaintiff and against the defendant. (c) That a decree for recovery of Rs. 33 as damages for unauthorized use and occupation of the shop in dispute be kindly passed in favour of the plaintiff and against the defendant. (d) That a decree for recovery of damages pendente lite and future till ejectment Rs. 330 per month be kindly passed in favour of the plaintiff and against the defendant. The case of the respondent-landlord in the plaint was that the petitioner had taken the disputed shop on rent @ Rs. 330 per month which had not been paid since 1.7.1993 to 16.12.1993 inspite of demand notice served by the landlord on the petitioner tenant. It was further the case of the landlord that the shop in dispute was new construction which was constructed and let out for the first time in year 1987, hence the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U. P. Act No. 13 of 1972) were not applicable as 10 years period from the date of its construction had not elapsed.
(3.) THE petitioner tenant denied the averments made in the plaint by filing in his written statement on the ground that no rent was due and that in fact rent for the month of July, 1993 the respondent landlord had himself refused to accept the rent which was sent by the tenant by money order. It was his case that rents for the months of July and August, 1993 were sent alongwith taxes by money order which was similarly refused by the landlord and similarly the rent was again sent for the months July, August and September, 1993 to the extent of Rs. 990 which was also refused by respondent No. 3 landlord, hence the petitioner tenant deposited the rent in the court below in Case No. 93 of 1993, in the aforesaid circumstances. It was also the case of the petitioner that the shop was not new construction and in fact it was an old construction to which the provisions of U. P. Act No. 13 of 1972 were fully applicable ; and that there is old assessment, which is continuing for the last 50 years. The petitioner filed money order receipts and besides examining himself as D. W. 1 also examined Hashmat Khan and Ashfaq Khan as witnesses in support of his case. The petitioner claimed the benefit of Section 114 of the Transfer of Property Act.;