S.U.Khan - (1.) -Heard learned counsel for the parties.
(2.) LANDLORD respondent No. 2, Smt. Janki Devi since deceased and survived by legal representatives instituted S.C.C./Suit No. 6 of 1992 against tenant petitioner for eviction and recovery of arrears of rent. In the plaint, it was stated that accommodation in dispute, which is situate on the first floor, was constructed in the year 1986/87 and it was assessed for house tax for the first time during the said period, hence U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was not applicable. The tenant asserted that building in dispute was constructed in the year 1970 and let out to him in the year 1978, hence Act was applicable. As far as default is concerned, tenant petitioner deposited entire arrears of rent etc. on the first date of hearing to claim benefit of Section 20 (4) of the Act, which is quoted below : "20. Bar of suit for eviction of tenant except on specified grounds. (1) ................ (2) ................ (3) ................ (4) In any suit for eviction on the ground mentioned in Clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground : Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. Explanation. - For the purposes of this sub-section- (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression 'cost of the suit' includes one-half of the amount of counsel's fee taxable for a contested suit." The trial court/J.S.C.C., Banda dismissed the suit through judgment and decree dated 2.5.1995. However, plaintiff landlord was held entitled to withdraw the amount deposited by the tenant. The J.S.C.C. held that building was constructed much before 1986-87, hence Act was applicable. Against the judgment and decree passed by the trial court, landlord respondent No. 2 filed S.C.C. Revision No. 20 of 1995. IInd A.D.J., Banda allowed the revision through judgment and order dated 18.11.1999, set aside the judgment and decree passed by the trial court and remanded the matter to the trial court for fresh decision in the light of the observations made in the body of the revisional court's judgment. Tenant petitioner has challenged the said order passed by the revisional court through this writ petition. Landlord respondent's case was that even though building on the ground floor had been constructed long before, however building in dispute situate on the first floor was constructed in 1986-87. Old and new assessment records were also filed. Old assessment records have been annexed as Annexure C.A.-1 to the counter-affidavit, which was also available before the courts below. In the extract of assessment register from 1975-76 to 1980-81 only one occupant Ram Janki wife of Omkar Prakash and tea stall is mentioned and rent is mentioned as Rs. 30 per month. In the extract of assessment register of Nagarpalika, from 1981-82 to 1985-86, same position is there. However in the extract of assessment register from 1986-87 to 1990-91, against house in dispute numbered as 717/7, tea stall is shown and in addition thereto two shops and three rooms are also shown. The said extract is Annexure-21A to the writ petition.
(3.) PLAINTIFF specifically pleaded that first floor was constructed in the year 1986. Revisional court based its judgment upon Explanation to Section 2 (2) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Lower revisional court has mentioned in its judgment that Chandra Shekhar Awasthi P.W. 2 was record keeper of Nagarpalika and he had brought the assessment registers before the trial court of different periods. In the extract of assessment registers for 1986-87 to 1990-91, names of other tenants occupying different portions were mentioned, however name of the petitioner did not find place in the said register. From this fact, revisional court inferred that in 1986-87, petitioner was not tenant.;