Shri Mundri
Lal Vs. Smt. Sushila Rani & Anr [2007] Insc 954 (18 September 2007)
S.B.
Sinha & Harjit Singh Bedi
CIVIL
APPEAL NO. 4348 OF 2007 [Arising out of SLP (Civil) No. 84 of 2007] S.B. SINHA,
J:
1.
Leave granted.
2.
Relationship between the parties is landlord and tenant. Appellant herein was
inducted as a tenant in a shop premises which is a part of House No. 177-E, Abu Lane, Meerut Cantt., Meerut (U.P.). Respondent purchased the said house
in the year 1969. The shop, in question, was newly constructed.
3.
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 (hereinafter called and referred to as the "said Act") contains
an exemption provision in Section 2(2) in regard to applicability thereof which
reads as under:- "Sec. 2(2) Except as provided in sub-section (5) of
Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24,
Sections 24-A, 24-B, 24-C or sub- section (3) of Section 29, nothing in this
Act shall apply to a building during a period of ten years from the date on
which its construction is completed."
Explanation I appended to the said provision
defines as to what is meant by the term "construction" in the
following terms:-
"Explanation I. For the purposes of this section, -
(a)
the construction of a building shall be deemed to have been completed on the
date on which the completion thereof is reported to or otherwise recorded by
the local authority having jurisdiction, and in the case of a building subject
to assessment, the date on which the first assessment thereof comes into
effect, and where the said dates are different, the earliest of the said dates,
and in the absence of any such report, record or assessment, the date on which
it is actually occupied (not including occupation merely for the purposes of
supervising the construction or guarding the building under construction) for
the first time :
Provided
that there may be different dates of completion of construction in respect of
different parts of a building which are either designed as separate units or
are occupied separately by the landlord and one or more tenants or by different
tenants ;
a.
"construction" includes any new construction in place of an existing
building which has been wholly or substantially demolished.
(b)
where such substantial addition is made to an existing building that the
existing building becomes only a minor part thereof the whole of the building
including the existing building shall be deemed to be constructed on the date
of completion of the said addition."
4. A
notice under Section 106 of the Transfer of Property Act was served on the
appellant asking him to quit and vacate the said tenanted premises.
As he
did not comply with the said demand, respondent filed a suit for eviction of
the appellant on the premise that Section 2(2) of the Act was applicable
stating:-
"3.
That the said accommodation was constructed in the year 1975, but after
construction the building was first assessed on new constructions since 1-4-1978 only and the U.P. Act 13 of 1972 is made applicable
to Meerut Cantonment area, is not applicable to the said construction and
according to law it is a new construction."
5.
Appellant traversed the said allegation in his written statement in the
following terms :
"That
contents of para 3 of the plaint are denied. The allegation that the shop in
dispute was constructed in the year 1975 is false. Similarly it is denied that
the said shop was for the first time assessed to house tax on 1-4-78. It is further denied that U.P. Act XIII of 1972 is not
applicable to the shop in dispute or that the said shop is a new construction
within the meaning of U.P. Act XIII of 1972 as applicable to the
Cantonment."
6. No
objection was raised that the said pleading was insufficient for attracting the
exemption provisions contained in the said Act. Parties went to trial, knowing
the issues arising in the suit.
One of
the issues which was framed in the said suit was as under:-
"[1]
Whether the property in question is a newly constructed and the U.P. Act No. 13
of 1972 is not applicable? If yes then effect?"
7. The
learned Trial Judge having regard to the evidences adduced by the parties
opined that requirements of both clauses (b) and (c) contained in the
explanation I appended to Section 2(2) were satisfied stating:- "In this
respect clause 1(c) of explanation of section 2 is important, in which it has
been stated that where such substantial addition is made to an existing
building that the existing building become only a minor part thereof the whole
of the building including the existing building shall be deemed to be
constructed on the date of completion of the said addition. In the light of the
clarification, which is fully applicable in the circumstances of the present
suit, that earlier the house, which was being used for residential purpose and
was on rent of Rs. 100/- per annum with the two tenants has been let out on Rs.
1600/- per month to a tenant for commercial use and substantial constructions
have been made in this property, which were detailed by P.W. 1, there is no
question of disbelieving the version of P.W. 1 that they demolished the earlier
existing store room, bath room and passage and constructed pillars and beams,
by removing other passage and store they constructed an attached bathroom and
latrine, a new room was constructed by removing the earlier existing store and
kitchen and pillars and beams were constructed by removing 5 arches in earlier
existing veranda, pillars and beams were constructed and a window was made by
constructing a linter of 26 by 35 feet in between earlier existing room and
verandah. The defendant has not rebutted this statement of P.W. 1 by any
material evidence nor he has denied specifically this statement of P.W. 1 in
his statement that substantial alterations were made as such the earlier
building has become a small part of present building as such the building is
deemed to be a new construction and the enhanced house tax was imposed first
time on 1-7-1978 on this property, therefore the property in question will be
deemed as newly constructed on 1-4-1978.
8. A
Revision Application was filed thereagainst by the appellant in terms of
Section 25 of the Provincial Small Cause Courts Act. It does not appear from
the Order passed by the High Court in exercise of its revisional jurisdiction
that any contention that the pleadings in regard to the jurisdictional fact
namely applicability of the provisions of the said Act was raised. The High
Court, however, without going into the contentions raised before it, relying on
or on the basis of the decision of this Court in Vineet period of ten years
have elapsed during the pendency of the suit and the revision application, the
Act would be applicable.
9.
Respondent approached this Court thereagainst. By a judgment and order dated
28.2.2005, the said decision was set aside, on the premise that Vineet Kumar
(supra) had been overruled by a larger Bench of this Court in remitted to the
High Court directing:-.
"
In the facts and circumstances of the case, we remit the matter to the High
Court for disposal in accordance with law. If the High Court finds that there
are other questions which arise for consideration in the Civil Revision before
the High Court, it will hear the parties and pass appropriate orders. If the
High Court finds that the matter requires to be remitted to the Trial Court for
any reason, it may do so. We express no opinion in the matter."
10.
The impugned judgment had been passed by the High Court on hearing the parties
afresh.
11.
Concededly, the appellant filed an application for adduction of additional
evidence in terms of Order XLI Rule 27 of the Code of Civil Procedure. The High
Court refused to exercise its discretionary jurisdiction in the matter stating
that the requirements of the said provision had not been fulfilled.
12. In
regard to the submission that the said Act was applicable since the High Court
was of the view that the findings of the learned Trial Judge cannot be said to
be wholly unsustainable attracting the revisional jurisdiction of the Court holding
:
"Besides,
I can not loose sight of the fact that it is a findings of fact arrived at by
the Court below which cannot be interfered in exercise of revisionist
jurisdiction.
I am
conscious of the fact that this is a revision under Section 25 of the
Provisional Small Causes Court Act but this alone would not entitle this Court
to reassess the evidence and upset a finding of fact. It is also to be noted
that while recording the findings on the question as to whether the building
was new building or an old building, it was taken into consideration that
previously the building was assessed at the rental value of Rs. 330/- per
annum, subsequently after the new construction, the value was enhanced to Rs.
22,800/- w.e.f. 1.4.1978.
This
was done taking into substantial additions made to the existing building. This
was earlier let out to one Satish Chander Jain for residential purposes and
after he vacated, major additions and alterations have been made and it was
converted into commercial building and was let out to the tenant for commercial
purpose. The trial Court took into consideration the oral evidence as well as
documentary evidence that was placed before the Judge Small Causes Court. I do not find any illegality what
so ever in the impugned judgment which calls for interference. This Court
interfere under section 25 Judge Small Causes Court only, in the event learned
counsel could establish that the findings of the trial Court was perverse and
not sustainable in law. Admittedly the building in question is subject to
assessment of municipal taxes and date of construction will be assessed on the
basis of assessment as well as other factor and evidence to be taken into
consideration, which was admittedly been done by the trial Court and this Court
at the time when this civil revision was decided on 24.8.2004, since, the
findings of the trial Court regarding the date of construction of the building
was confirmed in civil revision and upheld by the Apex Court, I am of the view
that it cannot be reopened in this second innings. The Apex Court has only remitted the case to
consider the other points which were not canvassed when the revision was
decided previously. In the fact and circumstances, what has been discussed
above, I do not find it a fit case for interference. The judgment dated 20th October, 1987 is absolutely a legal. The decree
for eviction and arrears of rent are confirmed. The civil revision is
accordingly dismissed."
13.
Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant
would submit that the High Court committed a serious error insofar as it failed
to take into consideration that the learned Judge, Small Causes Court had
committed an error of law in recording a finding of fact on issue No.1 upon
taking into consideration irrelevant facts and ignoring material evidence. Had
such facts which had been brought on record, Mr. Ramachandran would submit,
been taken into consideration, it could have been shown that most of the
constructions were raised on the first floor and not on the ground floor. It
was urged that the finding recorded by the learned Trial Judge that the
existing building had undergone substantial addition is vitiated in law, as the
same was arrived at without any basis, particularly when in terms of clause (c)
of Explanation I appended to Section 2(2) of the Act, it was necessary to
record a finding as regards total existing construction vis-`-vis total new
addition which would lead to the conclusion that new constructions within the
meaning thereof have been made.
14.
The High Court, it was contended, having regard to the fact that an admission
had been made in a rejoinder filed by the respondent in a pleading made in
another litigation in the year 1996 ought to have allowed the application for
adduction of additional evidence.
15.
Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the
respondent, on the other hand, would submit that the explanation raises a legal
fiction and in that view of the matter, the judgment of the High Court is unassailable.
The learned counsel contended that in the plaint, evidence need not be pleaded
and in any event as the parties had understood the merit and purport of the
issue between them, the respondent cannot be said to have been taken by
surprise, it was contended that even no ground had been taken before the High
Court.
16. By
reason of sub-section (2) of Section 2 of the Act, an exemption has been
created from operation of the Act. What would constitute
"Construction" is explained by Explanation I appended thereto. For
the said purpose, a legal fiction has been created. The criteria laid down therefor,
inter alia, is that the completion of a building should be reported to or
otherwise recorded by the local authority having jurisdiction, and in a case of
building subject to assessment, the date on which the first assessment thereof
comes into effect. Clauses (b) and (c) of Explanation I provides for an
expansive definition so as not only to include a construction upon demolition
of the existing structure but also substantial addition to an existing building
to the effect that the existing building becomes only a minor part thereof.
17.
Indisputably, new assessment was made in the year 1978.
Respondent
had brought on record, the vast difference in the amount of tax payable before
and after reconstruction.
18.
What would amount to a new construction, being essentially a question of fact,
would depend upon the nature and extent of the additions and alterations made
in the whole building. It does not confine to a floor where the tenanted
premises is situate. Where several tenants are inducted in different parts of
the same building, it would be difficult, in the event, the submission of Mr. Raju
Ramachandran is accepted to hold that one part of the building shall be
governed by the Act and the other part would not be.
Clause
(c) of the Explanation I in our considered opinion makes the legal position
absolutely clear.
19.
Appellant's application for adduction of additional evidence has been rejected
on valid grounds by the High Court. It, for cogent and sufficient reasons,
refused to exercise its discretionary jurisdiction. We do not see any reason to
interfere therewith. Even if the purported admission made by the respondent, a
subsequent pleading was to be taken into consideration, still then the
respondent was required to be cross-examined. Another round of litigation would
have started. We do not think that the appellant has made out a case for grant
of such indulgence.
20.
There cannot be any doubt whatsoever that the revisional jurisdiction of the
High Court under Section 25 of the Provincial Small Causes Courts Act is wider
than Section 115 of the Code of Civil Procedure. But the fact that a revision
is provided for by the statute, and not an appeal, itself is suggestive of the
fact that ordinarily revisional jurisdiction can be exercised only when a
question of law arises.
21.
We, however, do not mean to say that under no circumstances finding of fact
cannot be interfered therewith. A pure finding of fact based on appreciation of
evidence although may not be interfered with but if such finding has been
arrived at upon taking into consideration irrelevant factors or therefor
relevant fact has been ignored, the revisional court will have the requisite
jurisdiction to interfere with a finding of fact. Applicability of the
provisions of Section 2(2) of the Act may in that sense involve determination
of mixed question of law and fact.
22.
Strong reliance has been placed by Mr. Raju Ramachandran on a Others [(1997) 9
SCC 298] wherein having regard to the facts involved therein and particularly
the averments made in regard to completion of entire construction and
assessment notice issued by the municipality, the question which arose for
consideration was in regard to the date for completion of the building. It was
in the aforementioned premise this Court opined:-
"32.
The contention of the respondent landlord that the tenant appellant having
wrongly contended that he had been continuing in the old premises even prior to
1973, is not permitted to rely on the subsequent construction of the tenanted
premises, cannot be accepted for the simple reason that the landlord having
instituted the eviction suit in the Small Causes Court, instead of filing such
eviction suit before the appropriate forum under the Rent Act, on the plea that
the building in which the tenant was inducted in 1973 was a newly constructed
building for which he was entitled to exemption under Section 2(2) of the Rent
Act, was under an obligation to strictly prove that such building, in fact, had
been constructed within ten years from the date of the institution of the
suit."
23.
This Court exercised its discretionary jurisdiction under Article 136 of the
Constitution of India in the fact situation obtaining therein stating:-
"33..The deemed date of construction as found earlier by the courts below
was not approved by this Court in allowing the appeal arising out of the
earlier special leave petition preferred by the tenant appellant and the High
Court was specifically directed to decide the deemed date of construction under
Section 2(2) of the Rent Act in the light of the observation made by this
Court. In the facts of the case, such determination of deemed date of
construction by appreciating and interpreting municipal records and assessment
proceedings was not determination of a fact simpliciter but such determination
involved a determination of mixed question of law and fact"
24.
It, however, appears that another Bench of this Court in Sudha Rani as under:-
"12. "When a statute gives a definition and then adds that certain
things shall be 'deemed' to be covered by the definition, it matters not
whether without that addition the definition would have covered them or
not." (Per Lord President Cooper in Ferguson v. McMillan)
13.
Whether the word "deemed" when used in a statute established a
conclusive or a rebuttable presumption depended upon the context. (See St. Leon
Village Consolidated School Distt. V. Ronceray)
14.
"I regard its primary function as to bring in something which would
otherwise be excluded." (Per Viscount Simonds in Barclays Bank v. IRC)
15.
"Deems" means "is of opinion" or "considers" or
"decides" "and there is no implication of steps to be taken
before the opinion is formed or the decision is taken". [See R. v. Brixton
Prison (Governor), ex p Soblen, All ER p. 669 C.] (See Ali M.K. v. State of Kerala)
16. It
is not in dispute that the first assessment came into effect from 1-4-1983 and in the relevant column relating to enhancement
or reduction of the tax "Q September 1982" is recorded. According to
learned counsel for the appellant it means that the completion of the shop has
been recorded by the local authority on 1-7-1982. The plea is clearly untenable. A
quarter is a period of time, covering in the instant case from 1-7-1982 to 30-9-1982.
It
only shows that when assessment was made, construction was completed earlier
sometime in the third quarter of September 1982. The quarter started from 1-7-
1982. It cannot mean that the construction of the building was completed by the
date. The date of completion of construction can be any date falling between
two terminals i.e. 1-7-1982 to 30-9-1982. The hypothetical presumption that the first date of the
quarter being 1-7-1982, it shall be deemed to be the date
of completion of construction, has no basis. In case the first three dates are
available then the modality for working out the date of completion is provided
in the Explanation.
As the
records go to show, the first assessment came into effect on 1-4-1983. That is the third date provided in the
Explanation."
25. We
may, however, notice that another Division Bench of this Court in a short Order
opined as under:- "3. We see no ground to interfere with the order of
eviction passed by the trial court as affirmed by the High Court in revision.
The trial court after referring to the evidence has given a clear finding that
the building was constructed only in or after the year 1988. Therefore, by the
time the suit was filed, the building was less than ten years old. Hence, it
was rightly held that the landlord can invoke the benefit of Explanation 1 to
Section 2(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972."
26.
Each case, therefore, depends on its own facts. In this case, we are not
concerned with different dates of construction. The allegation contained in the
plaint that the constructions were made in the year 1975 and tax was assessed
with effect from 1.4.1978, being the issue involved in the suit, have been gone
into by the trial court at great details. We have noticed hereinbefore that a
finding of fact has been arrived at with reference to clause (c) of explanation
1 of Section 2(2) of the Act. Such a finding was based on the appreciation of
evidence. Before the High Court, it had not been pointed out, as to what
relevant facts have not been considered and what irrelevant fact had been
considered in arriving at the said decision.
27.
The High Court may not be entirely correct in its approach so far as
construction of Section 25 of the Provincial Small Cause Courts Act is
concerned, but as noticed hereinbefore, a finding of fact has been arrived at
keeping in view the pleadings of the parties and the issue framed on the basis
thereof, viz., as to whether the construction was an old construction or a new
one. The High Court in the revision application also noticed that the finding
of fact arrived at by the trial court had been approved in the earlier round of
litigation before the High Court.
28.
The provisions of Section 2(2) contain a deeming provision. By reason thereof,
a legal fiction has been created. It therefore, must be given and Anr. [2007
(8) SCALE 240, Para 13] 29. It is true that respondent
could have made more elaborate pleadings; but we have noticed hereinbefore that
no grievance was made in regard thereto. The parties knew the stand taken by
the other. The issue involved in the suit was a simple one namely whether the
construction was an old one or a new one. Even in the revision application, no
such question was raised as it appears from the impugned judgment of the High
Court. Such a ground was taken before us for the first time. There is also
nothing to show that the appellant has been prejudiced in any manner whatsoever.
It is a well settled principle of law that when parties have gone into trial
knowing fully well the issue involved, inadequate pleading, if any, may not be
sufficient to set aside the judgment.
30.
For the reasons aforementioned, we do not find any merit in this appeal which
is dismissed accordingly with costs. Counsel's fee assessed at Rs.10,000/-
(Rupees ten thousand only).
Back