# Jitendra Kumar Rajput Revisionist v. Pranveer Singh

- **Citation:** (2024) 5 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** S.C.C. Revision No. 29 of 2020
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-rajput-revisionist-v-pranveer-singh-51945
- **Pages:** 7

## Headnote

A. Tenancy Law - Transfer of Property Act,
1882 - Sections 106 &113 - Eviction suit -
More than one notice of eviction was issued
- Waiver of notice by subsequent notice -
Permissibility - Held, if no action has been
taken upon the issuance of earlier notice
and there is no change of status of lessor
and lessee, the earlier notice would be
waived off after issuance of latter notice -
Any admission made by the learned
counsel
for
the
revisionist-defendant
based upon first and second notice, would
be of no use - Undisputedly, neither any
SCC Suit is filed, nor the house is vacated
pursuant to first and second notice,
therefore, both the notices would be
waived of after issuance of third notice.
(Para 17 and 21)

B. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 2(2) - Applicability of
the Act - Assessment of building - New
assessment, cancelling earlier assessment
was made on 11.10.1985 - Effect - Held, in
case any building is constructed after
26.04.1985, the Act of 1972 would not be
applicable
and
after
construction,
assessment so made is to be treated first
assessment. Apart that, once the municipal
record of assessment is available, no oral
evidence is required. (Para 17 and 25)

Revision dismissed. (E-1)

List of Cases cited:

## Text

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Jaunpur,
henceforth,
for
necessary
compliance.
----------
(2024) 5 ILRA 1066
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 29 of 2020
And
S.C.C. Revision No. 27 of 2020

Jitendra Kumar Rajput ...Revisionist
Versus
Pranveer Singh ...Respondent

Counsel for the Revisionist:
R.K. Mishra

Counsel for the Respondent:
Ashok Kumar, Himanshu Pandey, Prateek Sinha

A. Tenancy Law - Transfer of Property Act,
1882 - Sections 106 &113 - Eviction suit -
More than one notice of eviction was issued
- Waiver of notice by subsequent notice -
Permissibility - Held, if no action has been
taken upon the issuance of earlier notice
and there is no change of status of lessor
and lessee, the earlier notice would be
waived off after issuance of latter notice -
Any admission made by the learned
counsel
for
the
revisionist-defendant
based upon first and second notice, would
be of no use - Undisputedly, neither any
SCC Suit is filed, nor the house is vacated
pursuant to first and second notice,
therefore, both the notices would be
waived of after issuance of third notice.
(Para 17 and 21)

B. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 2(2) - Applicability of
the Act - Assessment of building - New
assessment, cancelling earlier assessment
was made on 11.10.1985 - Effect - Held, in
case any building is constructed after
26.04.1985, the Act of 1972 would not be
applicable
and
after
construction,
assessment so made is to be treated first
assessment. Apart that, once the municipal
record of assessment is available, no oral
evidence is required. (Para 17 and 25)

Revision dismissed. (E-1)

List of Cases cited:

1. Avadh Kishore Dass Vs Ram Gopal & ors.; 1979
0 AIR (SC) 861

2. Tayabali Jaferbhai Vs M/s Ashan and Co. &
ors.; AIR 1971 SC 102

3. Civil Misc. Writ Petition No. 14421 of 1997;
Anish Ahmad Vs Special/Additional District Judge,
Saharanpur & ors.decided on 01.05.1997

4. Aziz Alam@Guddu Vs Smt. Malti Vaish:
2017(3) ARC 811

5. Ram Swaroop Rai Vs Smt. Leelawati, (1980) 3
SCC 452

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri R. K. Mishra, learned
counsel for the revisionist and Sri Prateek
Sinha, learned counsel for the respondent.

2. By means of S.C.C. Revision
No. 29 of 2020, revisionist has challenged
the impugned judgement and decree dated
20.01.2020 passed by learned Additional
District Judge, Court No. 20, Kanpur
Nagar in S.C.C. Suit No. 70 of 2017
(Pranveer Singh Vs. Jitendra Kumar
Rajpoot).

3. By means of S.C.C. Revision
No.27 of 2020, revisionist has challenged
the impugned judgement and decree dated
20.01.2020 passed by learned Additional
District Judge, Court No. 20, Kanpur Nagar
in S.C.C. Suit No. 72 of 2017 (Pranveer
Singh Vs. Madhukar Pandya).
5 All. Jitendra Kumar Rajput Vs. Pranveer Singh
1067
4. Since the common question of
law and facts are involved in both the
revisions, therefore, with the consent of
counsel for parties, both the revisions are
being decided together by a common
judgment.

5. Learned counsel for the
revisionists-defendants
submitted
that
revisionists are the tenants of plaintiffrespondent since the year 2000 and paying
rent at the rate of 1250/- p.m. including
taxes. He has received a notice of eviction
dated 16.06.2014 stating therein that the
provision
of
U.P. Act
No.
13
of
1972(hereinafter, referred to as, 'Act, 1972')
are applicable to the house in question. The
revisionists have replied the said notice vide
his reply dated 02.07.2014. Revisionists
have further received second noticed dated
03.09.2015 for arrears of rent and to vacate
the accommodation with the specific
averment that Act, 1972 is applicable.
Revisionists have also replied the said notice
stating therein that rent is being deposited
and is paid up to 31.12.2015.

6. Lastly, he received third notice
dated 13.05.2017 under Section 106 of
Transfer
of
Property
Act,
1882(hereinafter, referred to as 'Act,
1882') and in the said notice a new stand
was taken by the respondent-plaintiff that
wrongly in the notice dated 16.06.2014 in
para no. 6, it was mentioned that the
provisions of Act, 1972 are applicable and
stated for the first time in the notice dated
13.05.2017 that the provisions of Act,
1972 would not be applicable. The
revisionists-defendants submitted their
reply dated 29.05.2017. Based upon the
aforesaid notices, respondent-plaintiff has
filed SCC Suit No. 70 of 2017 & SCC Suit
No. 72 of 2017 against the revisionistsdefendants respectively seeking a decree
of eviction as well as recovery of arrears
of rent.

7. He firmly submitted that once the
applicability of Act, 1972 is admitted by the
respondents-plaintiffs in the notices dated
16.06.2014 and 03.09.2015, it would be
treated admission on the part of the
respondents-plaintiffs and he cannot take Uturn in the third notice dated 13.05.2017 that
Act, 1972 would not be applicable. Therefore,
revisionists-defendants are entitled for benefit
of Section 20 (4) of Act, 1972, as they are
regularly depositing the rent @ Rs. 1250/- per
month. In support of his contention, learned
counsel for the revisionists has placed reliance
of judgement of Hon'ble Apex Court in the
case of Avadh Kishore Dass Vs. Ram Gopal
and Others1979 0 AIR (SC) 861.

8. He next submitted that first
assessment of house in question was made
in the year 1979 which is prior to the cut
of date i.e. 26th April, 1985, therefore,
under the facts of the case Act, 1972 would
be applicable. He also pointed out that
learned Judge has relied upon the second
assessment
which
was
made
on
11.10.1985 and has held that Act, 1972
shall not be applicable. Leaned counsel for
the
revisionists-defendants
firmly
submitted that once the first assessment
has taken place in the year 1979, the Act,
1972 would be applicable.

9. He lastly submitted that once
there is admission about the applicability of
Act, 1972 in notices dated 16.06.2014 and
03.09.2015 and further, first assessment
took place in the year 1979, Act, 1972 would
be applicable and there is no scope of
adjudication on this point.

10. He next submitted that Suit No.
70 of 2017 & 72 of 2017 have been
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
instituted
by
the
respondent-plaintiff
through power of attorney and it is settled
principle of law that power of attorney
holder can only depose about the facts which
are within his personal knowledge and not
about the facts which are not within his
knowledge
or
are
within
personal
knowledge of person, who he represents or
about facts that may have transpired much
before he entered to scene.

11. Per contra, Sri Prateek Sinha,
learned counsel for the respondent-plaintiff
vehemently opposed the submission of learned
counsel for the revisionist and submitted that
illustration of Section 113 of Act, 1882 clearly
provides that in case after issuance of first
notice, if the house is not vacated and second
notice is issued, the first notice is to be treated
waived of. He next submitted that this ratio of
law has also been affirmed by the Apex Court
in the matter of Tayabali Jaferbhai Vs. M/s
Ashan and Co. andothers: AIR 1971 SC 102
and by this Court in Civil Misc. Writ Petition
No. 14421 of 1997(Anish Ahmad Vs.
Special/Additional
District
Judge,
Saharanpur
and
others),
decided
on
01.05.1997.

12. He next submitted that it is
undisputed that pursuant to the notices dated
16.06.2014 and 03.09.2015, no suit has been
filed, therefore, the contents of both the
notices cannot be treated as admission. He
next pointed out that undisputedly the SCC
Suit No. 70 of 2017 & 72 of 2017 are based
upon the third notice dated 13.05.2017, in
which it is clearly stated that Act, 1972
would
not
be
applicable,
therefore,
contention so raised by learned counsel for
the revisionists-defendants is bad in law and
is not sustainable.

13. He next submitted that so far as
the document about the assessment year
issued by Nagar Nigam, Kanpur Nagar is
concerned, the document produced before
the Court clearly indicates that first
assessment was made in the year 1979 and
after construction of four new shops the
fresh assessment took place on 11.10.1985
which may be taken into consideration for
applicability of the Act, 1972.

14. He next submitted that once the
municipal tax record is available, no oral
evidence is required for first assessment. In
support of his contention, he placed reliance
on the judgment of this Court in the matter
of Aziz Alam@Guddu Vs. Smt. Malti Vaish:
2017(3) ARC 811.

15. Learned counsel for the
respondent-plaintiff further submitted that
so far as argument of deposition of power of
attorney is concerned, it is oral submission
and this fact has not been pleaded and is not
the part of written statement filed in SCC
Suit No. 70 of 2017 & 72 of 2017, therefore,
this may not be raised at this stage. Apart
from
that,
learned
counsel
for
the
revisionists-defendants has also not pointed
out as to what deposition is made by the
power of attorney holder beyond his
personal knowledge, therefore, argument of
learned counsel for the revisionist-defendant
may not be accepted.

16. I have considered the rival
submissions advances by learned counsel
for the parties, perused the record and the
judgments relied upon.

17. There are two issue before the
Court to decide. The first issue is that in case
of issuance of more than one notice and
based upon last notice, a suit is instituted,
what would be the fate of earlier notice.
Second issue before the Court is with regard
to municipal assessment made by the
5 All. Jitendra Kumar Rajput Vs. Pranveer Singh
1069
Municipal Corporation of a house at two
different stages.

18. Now, coming to first issue i.e.
about the status of notices issued from time
to time. Section 113 of the Act, 1882 is
relevant for this issue, which deals with the
waiver of notice to quit. Section 113 of the
Act, 1882 is being quoted hereinbelow:

"113. Waiver of notice to quit-- A
notice given under section 111, clause (h), is
waived, with the express or implied consent
of the person to whom it is given, by any act
on the part of the person giving it showing
an intention to treat the lease as subsisting.
Illustrations
(a) A the lessor, gives B, the lessee,
notice to quit the property leased. The notice
expires. B tenders, and A accepts, rent which
has become due in respect of the property
since the expiration of the notice. The notice
is waived.
(b) A, the lessor, gives B, the lessee,
notice to quit the property leased. The notice
expires, and B remains in possession. A
gives to B as lessee a second notice to quit.
The first notice is waived."

19. This issue was before the
Hon'ble Apex Court in the matter of
Tayabali
Jaferbhai(Supra).
Relevant
paragraphs of the said judgment are being
quoted hereinbelow:

"6. In the present case there can be
no doubt that the serving of the second
notice and what was stated therein together
with the claim as laid and amplified in the
plaint showed that the landlord waived the
first notice by showing an intention to treat
the tenancy as subsisting and that this was
with the express or implied consent of the
tenant to whom the first notice had been
given because he had even made payment of
the rent which had been demanded though it
was after the expiration of the period of one
month given in the notice.
7. It further appears that the rent
was sent by the tenant treating the tenancy
as subsisting and not as having come to an
end by virtue of the first notice. There is
another significant fact which shows that it
was the second notice which was considered
by the landlord to be the effective notice. It
was in the notice sent in October 1957 ,that
the landlord, for the first time, raised the
ground of personal necessity. In the suit
requirement of personal necessity was made
one of the main grounds on which eviction
was sought. In the first notice which was
sent in June 1956 no such requirement or
ground had been mentioned. It was not
open, therefore to the landlord to say that he
did not ,want to rely on the second notice
and should be allowed to base his action for
eviction only on the first notice containing
the ground of the default in payment of
arrears of rent. We are satisfied that the suit
of the landlord was rightly dismissed though
we have sustained its dismissal on different
reasoning."

20. Again the very same issue was
before this Court in the matter of Anish
Ahmad(Supra). Relevant paragraph of the
said
judgment
are
being
quoted
hereinbelow:

"A landlord can waive the notice as
provided under Section 113 of Transfer of
Property Act which provides that the notice
given under Section 111, Clause (h), is
waived, with the express or implied consent
of the person to whom it is given, by any act
on the part of the person giving it showing
an intention to treat the lease as subsisting.
The person claiming that the notice has been
waived has to satisfy two essential
ingredients (i) the intention of the landlord
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
was to treat the lease as subsisting, and (ii)
he had a knowledge of the fact that this
conduct amounts to waiver."

21. From the perusal of the
provision of Act, 1882 as well as ratio of law
laid down Courts in Tayabali Jaferbhai
(Supra) and Anish Ahmad(Supra), it is
apparently clear that in case lessor gives
notice to lessee to give the property leased
and lessee remains in possession and
thereafter, lessor gives second notice to
lessee to quit, the first notice is waived of.
The legislation is very much clear on this
point. If no action has been taken upon the
issuance of earlier notice and there is no
change of status of lessor and lessee, the
earlier notice would be waived off after
issuance of latter notice. Therefore, this
Court is of the firm view that any admission
made by the learned counsel for the
revisionist-defendant based upon first and
second notice would be of no use. In the
present case, it is undisputed that neither any
SCC Suit is filed, nor the house is vacated
pursuant to first and second notice,
therefore, both the notices would be waived
of after issuance of third notice.

22. Now, coming to the judgment
relied upon by the learned counsel for the
revisionists-defendants in the matter of
Avadh Kishore Dass(Supra), which is
about the admission. This Court is of the
view that there would be no effect of first
and second notice for the purpose of
admission as the notices would be treated
waived off in terms of Section 113 of the
Act, 1882 as well as law laid down by the
Hon'ble Courts in this regard. Therefore,
this judgment is not coming in the rescue
of the revisionists-defendants as there is
no admission on record made by the
respondent-plaintiff and withdrawn later
on.
23. Now, coming to the second
issue about the assessment. It is defined
under Section 2(2) of the Act, 1972. The said
Section is being quoted hereinbelow:

"[Except as provided in Sub-section
(5) of Section 12 Sub-section (1A) of Section
21, Sub-section (2) of Section 24, Section
24A 24B, 24C, 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]:
[Provided that where any building is
constructed substantially out of funds
obtained by way of loan or advance from the
State Government or the Life Insurance
Corporation of India or a bank or a cooperative society or the Uttar Pradesh Avas
Evam Vikas Parishad, and the period of
repayment of such loan or advance exceeds
the aforesaid period of ten years than the
reference in this sub-section to the period of
ten years shall be deemed to be a reference
to the period of fifteen years or the period
ending with the date of actual repayment of
such loan or advance (including interest),
which ever is shorter]:
[Provided
further
that
where
construction of a building is completed on
or after April 26, 1985 then the reference in
this sub-section to the period of ten years
shall be deemed to be a reference to a period
of [forty years] from the date on which its
construction is completed.
Explanation I.-For the purposes of
this Sub-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
5 All. Jitendra Kumar Rajput Vs. Pranveer Singh
1071
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.
(b) "construction" includes any new
constructions in place of an existing
building which has been wholly or
substantially demolished;
(c) 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." "

24. This issue was considered by
Hon'ble Apex Court in the matter of Ram
Swaroop Rai Vs. Smt. Leelawati, (1980) 3
SCC 452, and the Apex Court has held that
in case where tax records are available, oral
evidence remains inconsequential for the
purpose of first assessment. This Court in
the matter of Aziz Alam@Guddu(Supra) has
reiterated the the ratio of law laid down by
the Hon'ble Apex Court in the matter of
Ram
Swaroop
Rai(Supra).
Relevant
Pragraph of Aziz Alam@Guddu(Supra) are
being quoted hereinbelow:

"8. The aforesaid judgment of the
Apex Court conclusively holds that in a case
where tax records are available, oral
evidence remains inconsequential and it is
the documentary evidence submitted, as per
the provisions of Rent Control Act, 1972,
which is relevant for deciding the date of
completion of building for the purpose of
Rent Control Act. Thus, the oral admission
made in the cross examination cannot be
looked into by the Court. There remain two
house tax assessments on record, one claims
to be first assessment of the year 1992 of the
entire building and another a house tax
assessment of the year 1986 of the shop in
dispute. They both are of a date later to
26.04.1985. Even presuming, on basis of the
house tax assessment register submitted by
the revisionist/tenant of the year 1986, the
building was constructed in the year 1986,
still the same was constructed after
26.04.1985 and thus is exempted from the
application of Rent Control Act, for a period
of 40 years.
9.
Present
suit
for
eviction
admittedly was filed within the said period
of 40 years. Hence, conclusion of the court
below that the provisions of Rent Control
Act, 1972 are not applicable on the property
in dispute cannot be faulted with. "

25. From the perusal of the
aforesaid Section, it is apparently clear that
in case new construction is made to the
extent that existing building becomes only a
minor part, the whole building including
existing part shall be deemed to be
constructed on the date of completion of said
addition. In the present case, earlier,
assessment was made in the year 1979
having a tin shade, road, a gumti, some open
land. Later on, two shops, four bed rooms,
one kitchen, one store & one portico were
constructed and cancelling the earlier
assessment, new assessment was made on
11.10.1985 by the municipal authority. From
the perusal of Section 2(2), it is also clear
that in case any building is constructed after
26.04.1985, Act, 1972 would not be
applicable
and
after
construction,
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
assessment so made is to be treated first
assessment and. Apart that, once the
municipal record of assessment is available,
no oral evidence is required.

26. So far as last issue argued by the
learned
counsel
for
the
revisionistsdefendants about the authority of power of
attorney is concerned, the same is having no
relevance for the reasons that it was not part
of
the written
statement
and being
confronted by the Court this fact could not
be disputed by learned counsel for the
revisionists-defendants.

27. Therefore, under such facts and
circumstances of the case, I found no
infirmity or illegality in both the impugned
judgements and decrees dated 20.01.2020.

28. Revisions lack merit and are
accordingly dismissed.

29. No order as to costs.
----------
(2024) 5 ILRA 1072
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 38 of 2024

Mahendra Pratap Singh ...Revisionist
Versus
Rama Raman & Ors. ...Respondents

Counsel for the Revisionist:
Ashwani Kumar

Counsel for the Respondent:
Girish Kumar Gupta

A.
Tenancy
Law
-
Civil
Procedure
Code,1908 - O. VI R. 17 - Amendment -
Substitution of word 'licence deed' in place
of 'tenant' was sought for in written
St.ment
-
Change
of
counsel
or
typographical error was made ground for
amendment - Permissibility - Admission
made in favour of plaintiff, how far can be
withdrawn - Held, admission made in
favour of plaintiff cannot be withdrawn - It
cannot be withdrawn even on the ground
of typographical error - Change of counsel
cannot be a ground to file amendment
application
bypassing
the
rigorous
conditions of due diligence. (Para 9, 14 and
18)

Revision dismissed. (E-1)

List of Cases cited:

1. Life Insurance Corporation of India Vs Sanjeev
Builders Pvt. Ltd. & anr.; 2022 0 Supreme(SC)
864

2. Ram Niranjan Kajaria & ors.Vs Jugal Kishore
Kajaria; (2015) 10 SCC 203

3. Abdul Ahmad Vs Haq Nawaz Ahmad; 2016(8)
ADJ 176

4. Civil Misc. Writ Petition No. 12067 of 2012;
Rama Nand & ors. Vs Amrit Lal & ors.

5. Panchdeo Narain Srivastava Vs Jyoti Sahay;
1984 Supp SCC 594

6. Hari Shanker and 5 others Vs Bhawati Prasad
Mishra; 2014 (0) Supreme (All) 3127

7. Matters under Article 227 No. 5213 of 2013;
Shri Firoz Uddin & ors. Vs Shri Anwar Uddin

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashwini Kumar,
learned counsel for revisionist and Sri
Santosh
Kumar
Kesarwani,
Advocate
holding brief of Sri Girish Kumar Gupta,
learned counsel for opposite parties.

2. Present revision has been filed
seeking following relief:-