HIGH COURT OF UTTARAKHAND, AT NAINITAL Civil Revision No.57 of 2007 Harish Chandra Joshi S/o late Sri Shiv Dutt Joshi R/o Talli Haldwani, Khanna Farm, District Nainital … Revisionist Versus Addl. District Judge and another …. Respondents Dated:- 18th August, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Arvind Vashisht, the learned counsel duly assisted by Mr. Piyush Garg, the learned counsel for the revisionist and Mr. H. S. Dhillon, the learned counsel for the respondent no.2. The present dispute relates to the eviction of the revisionist from the premises in question. It transpires that the revisionist fell in arrears of rent for the period 1998 to June, 2000. A notice under Section 106 of the Transfer of Property Act was issued terminating the tenancy and calling upon the tenant to vacate the premises upon the expiry of the period of notice. Since the revisionist did not vacate the premises nor paid the arrears of rent, a suit was instituted by the landlord before the Judge Small Causes Court. The revisionist tenant raised a defence that the suit could not have been filed under the Provincial Small Cause Courts Act since the revisionist was a tenant in the shop in question, which was an old construction and, consequently, the U.P. Act No.13 of 1972 was applicable. The trial court on the basis of the affidavits and evidence brought on record held that there is a relationship of a landlord- tenant between the respondent and the revisionist. The trial court also found that the revisionist was in arrears of rent and that a notice was validly issued terminating the tenancy. The court below found that the U.P. Act No.13 of 1972 was not applicable, and consequently, decreed the suit for the eviction and for the arrears of rent. The tenant, being aggrieved by the said order, has filed the present writ petition. Apart from disputing that a valid notice under Section 106 of the Transfer of Property Act was not issued and that the petitioner in any case was never in arrears of rent, the learned counsel for the revisionist contended that the U.P. Act No.13 of 1972 was applicable and, consequently, the proceedings initiated under the Provincial Small Cause Courts Act was wholly illegal. In support of his submission, the learned counsel for the revisionist contended that the suit was filed in the year 2001 and the shop was constructed prior to 1985 and that the evidence brought on the record indicates that the first assessment of the shop in question was made in 1977-1978, which evidence had been totally ignored and, the court below, on the basis of a statement made by the landlord in her replication that the plan was sanctioned by the authority in the year 1988 and based on that, the first assessment was made in the year 1996 and, consequently, the U.P. Act No.13 of 1972 was not applicable in view of the provision of Section 2(2) of the said Act. The learned counsel for the revisionist submitted that the finding of the court below is patently erroneous and perverse and that the material evidence brought on record was neither discussed nor considered in the judgment of the trial court. On the other hand, the learned counsel for the landlord contended that there is ample material on record to indicate that the shop was constructed after 1988 when the plan was sanctioned and that as per the evidence of the Tax Inspector, the shop was assessed for the first time in the year 1996 and, consequently, the U.P. Act No.13 of 1972 was not applicable. 3 Upon hearing the learned counsel for the parties at some length, the essential facts, which is culled out from the record is, that shop no.6 was leased out by the landlord to the revisionist tenant. This shop No.6 was eventually renumbered as Shop No.8/2/7. The revisionist filed the evidence of the Tax Inspector as well as other witnesses to prove that the shop in question was being assessed from 1977-1978 onwards. This court finds that the court below, without discussing the evidence of the revisionist tenant, had given a finding that since the plan was sanctioned in the year 1988, and consequently, U.P. Act No.13 of 1972 was not applicable. In my opinion, the approach adopted by the trial court is not correct. The court has to find as to whether the shop No.6 which was renumbered as 8/2/7 was assessed for the first time at what stage, namely, whether it was assessed in the year 1977-78 or it was assessed for the first time in the year 1996. A finding has to be given as to whether the assessment shown in 1977-78 was with regard to the same shop or for some other shop and that the premises in question was in fact actually constructed on a plot or it was constructed after demolition of an old shop. There is nothing on record to suggest that the plan sanctioned for the construction of the shop for shop no.8/2/7. The court further finds that the Tax Inspector, who was called to give evidence, did not bring the original first assessment register. Consequently, the court is of the opinion that that the finding given by the trial court on the question of applicability of the U.P. Act No.13 of 1972 was not properly dealt with nor the evidence filed by the revisionist was considered. On this short ground, the court finds that the impugned order dated 24.09.2007 passed by the court below cannot be sustained and is accordingly quashed. The civil revision is allowed. The matter is remitted again to the Judge Small Causes Court to decide the 4 matter afresh on all points urged by the parties within six months from the date of the production of a certified copy of this order. It would be open to either of the parties to lead additional evidence on the question of applicability of the U.P. Act No.13 of 1972. Dated 18.08.2010 LSR (Tarun Agarwala, J.)