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CASE NO.: Appeal (civil)  4348 of 2007

PETITIONER: Shri Mundri Lal

RESPONDENT: Smt. Sushila Rani & Anr

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

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.  \026 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 ;

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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

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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  Kumar Vs. Mangal Sain Wadhera (1984 (3) SCC 352) opined that as the  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  Suresh Chand Vs. Ghulam Chisti (AIR 1990 SC 897).   The matter was  remitted to the High Court directing:-. "\005\005 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

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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

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"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  decision of this Court in Suresh Kumar Jain Vs. Shanti Swarup Jain And  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."

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23.     This Court exercised its discretionary jurisdiction under Article 136 of  the Constitution of India in the fact situation obtaining therein stating:- "33\005..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\005\005"          24.     It, however, appears that another Bench of this Court in Sudha Rani  Garg (Smt.) Vs. Jagdish Kumar (Dead) And Others [(2004) 8 SCC 329] held  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 \005 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."

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25.     We may, however, notice that another Division Bench of this Court in  Sanjay Kumar Gulati Vs. N.P. Singh and Another [(2005) 12 SCC 396], by  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  its full effect.  See S.M.S.Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr.  [(2007) 4 SCC 70] and Ramesh Chandra Sharma Vs.  Punjab National Bank  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).