SURENDER KUMAR JAIN vs. SANTHI SWAROOP JAIN .

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11 PETITIONER: SURESH KUMAR JAIN Vs. RESPONDENT: SHANTI SWARUP JAIN & ORS. DATE OF JUDGMENT: 21/11/1996 BENCH: G.N. RAY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT: J U D G M E N T G. N. Ray, J. This appeal is directed against judgment dated December 21, 1995 passed by the Allahabad High Court in Civil Misc. Writ Petition No. 1556 of 1995. It may be stated here that against the earlier judgment of the High Court passed in the said Civil Misc. Writ Petition, this Court was moved by filing S.L.P. (C) No. 4280 or 1995. Such Special Leave Petition was disposed of by this Court and by order dated July 24, 1995, the Writ Petition was remanded to the High Court for fresh adjudication in the light of observations made in the judgment of this Court. The appellant was inducted as a tenant on the ground floor of building numbered as 29 Mainganj ward No.4 Block No.2, Kapra Market, Etah, within the limits of Etah Municipality at a monthly rental or Rs. 75/- with effect from March, 1973, by the owner landlord respondent Sri Shanti Swarup Jain. For the purpose of appreciating rival contentions of the parties in this appeal, the following facts which are on record appear to be relevant. (a) The Executive Officer, Municipal Committee, Etah, gave notice dated November 15, 1977 to the owner landlord respondent Sri Shanti Swarup Jain under Section 143 of U.P. Municipalities Act, 1916 that in respect of house Nos. 29, 29A, of the said Etah Municipality, the annual valuation had been fixed at Rs. 1,800/- and the House Tax for the said premises had been assessed at Rs. 90/-. It was indicated in the said notice that if the landlord had any objection, such objection would be filed during the working hours on December 20, 1977 or earlier. It may be indicated that originally the House No. 29 before reconstruction was a single storied building. After reconstruction the building comprises ground, first and second floor and such reconstructed building has been numbered as House Nos. 29, 29A AND 29B. The receipt of said notice of the Municipality under Section 143 was acknowledged by the owner respondent on November 25, 1977. (b) In reply to the said notice of assessment, the owner respondent filed his objections that the assessment of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11 House Tax was high and that only one shop was let out on a monthly rental of Rs. 75/- and the remaining portion of the building was lying unused. In the said objections the owner landlord did not state that the construction of the said house Nos. 29, 29A and 29B was not completed. (c) On January 30, 1978, the building constructed by the respondent was inspected by the Section Head Clerk of the Municipality and a report was filed by the said Head Clerk recording that the ground floor and the first floor had been rented respectively at Rs. 75/- and Rs. 60/- per month and the second floor of the building was in possession of the respondent owner. In the said report it was indicated that the shop was well constructed. (d) The Municipality issued a letter dated January 30, 1978 to the respondent which was received by him on January 31, 1978, intimating the date fore hearing the objection to the assessment of house tax, was fixed on February 1, 1978 at 11.00 A.M. An order of assessment in respect of the said house Nos. 29, 29A and 29B was passed on February 2, 1978. Such assessment was, however, challenged by the respondent and the assessment of house tax ultimately came into effect from April 1, 1981 on the conclusion of pending litigation on account of challenge of the order of assessment of House Tax. On December 19, 1990, the plaintiff respondent No.1 Sri Shanti Swarup Jain, instituted a suit for eviction of the appellant from the suit premises in which he was inducted at a monthly rental of Rs. 75/- in the Court of Munsif Small Causes being Suit No.18 of 1990. The defendant tenant who is the appellant herein raised an objection as to the maintainability of the said Eviction Suit No.18 of 1990 before the learned Munsif Small Causes. It was contended inter alia by the tenant appellant that under the provisions of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, the jurisdiction to entertain the said suit by the learned Munsif. Small Causes, was barred under Section 20 of the said Rent Act. Section 2 of the said Rent Act provides for exemption from the operation of the Act under certain conditions but such conditions were not fulfilled in the instant case. The deemed date of construction of the building is provided in Explanation I of Sub-Section (2) of the Section 2 of the Rent Act. It will be appropriate to refer to the Explanation I of Sub-Section (2) of Section 2 of the said Rent Act. Explanation I - (For the purposes of this Section) - (a) the construction of a building shall be deemed to have completed 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 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11 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. Dr. A.M. Singhvi, the learned Senior Counsel appearing for the appellant, has submitted that there is no scope to dispute that if the building in question in respect of which the said eviction suit was instituted in the court of the learned Munsif, Small Causes, had not been completed within ten years from the date of institution of the said suit, the same was not maintainable being barred under Section 20 of the said Rent Act. Dr. Singhvi has submitted that the Explanation I of the Sub-Section (2) of Section 2 of the said Rent Act clearly indicates that the legislature has with the intention of balancing the equities between the landlord and the tenants, exempted the landlord from the protection granted to the tenants against eviction under the said Rent Act for a limited period of ten years from the date of completion of newly constructed building. In order to safeguard the interest of the tenants for which the rent legislation was primarily enacted, and in order to ensure that the protection in favour of the landlord is not extended indefinitely, the legislation has provided a mechanism for determined the date on which building in question will be deemed to have been constructed by providing four distinct alternatives and also providing that in the event the said dates are different, the earliest of the date would be the deemed date of construction. Dr. Singhvi has further submitted that the ratio or principle behind the said provision to take the earliest of the deemed dates of construction, was obviously to give protection due to the tenant once the building is established to be ten years old on the earliest point of time amongst the various dates of deemed construction. Dr. Singhvi has also submitted that it is significant to note that the proviso to Explanation I of Sub-Section (2) of the Rent Act specifically states that there may be different dates of completion of construction in respect of different parts of a building which are designed as separate units or occupied separately by the landlord or one or more tenants or by different tenants. Dr. Singhvi has contended that various dates as indicated in Explanation I for computing the period of completion of the premises in question for the purpose of finding whether completion was within ten years or not, are as follows :- (a) The date on which completion thereof is reported to the local authority having jurisdiction; (b) The date on which the completion thereof is otherwise recorded by the local authority having jurisdiction ; (c) The date on which the assessment to property tax comes into effect; According to Dr. Singhvi, landlord, according to the case pleaded by him in the plaint of eviction suit, has pleaded and accepted that the contention of the ground floor and indeed the entire building i.e. ground, first and second floors were completed in March, 1973 when the appellant was inducted as a tenant at a monthly rental of Rs. 75/-. Although the landlord did not specifically make a report to the local authorities having jurisdiction about the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11 completion of the building, the local authorities have clearly recorded vide the said inspection report of January 30, 1978, that the building bearing No.29, 29A and 29B is well constructed. Dr. Singhvi has submitted that the expression "otherwise recorded" used in Explanation 1 to Section 2 (2) of the Rent Act must necessarily be given the widest possible meaning as the words have no restriction in the Explanation and, therefore, a recording by local authorities that the building is complete or constructed as found on inspection for the purpose of assessment of house tax would satisfy the requirements under the Explanation I, Hence, it would not be open to the respondent to contend that the date on which first assessment to property tax came into effect would be the governing date for computing the period of ten years. Dr. Singhvi has also submitted that the objections of the respondent landlord to the notice of assessment of House Tax clearly indicated that there had been admission of the landlord that the building though constructed was lat out to a tenant and other portions were lying vacant or unused on the date of said objection i.e. on December 16, 1977. Dr. Singhvi has also submitted that in the suit for eviction, the landlord respondent has sought for possession of the ground floor of the said building from the tenant appellant. The ground floor has admittedly been treated as a separate and construct part of the building and such distinct and separate part was in the occupation and exclusive possession of the tenant appellant ever since March, 1973. It has been contended by Dr. Singhvi that in view of the fact that construction of ground floor was completed in 1977 and the appellant was inducted as a tenant in such constructed unit ever since March, 1973 under the proviso to Explanation I which specifically provides that different parts of the building may have different dates of construction, the eviction suit must be held as clearly barred under Section 20 of the Rents Act because the said constructed unit comprising tenancy of the appellant had been built in 1973. Dr. Singhvi has submitted that the proviso to Explanation I clearly reveals the intention of the legislature to limit the benefit or exemption of provisions of Rent Act upto a period of ten years from the construction of building or any separate unit of the building but after the expiry of such period of ten years, the tenant is entitled to full protection under the beneficial legislation, namely, the said Rent Act. As in the facts of the case, the said Rent Act. As in the facts of the case, the appellant tenant has been able to clearly demonstrate with reference to records which are not disputed that House No. 29 since let out to him ever since March, 1973, stood constructed at the time of inception of tenancy and the tenant has all along been in exclusive possession of this separate unit from the date of inception of tenancy, it cannot but be held that the tenanted premises being the separate unit of the building having been constructed long before the period of ten years prior to the date of the institution of the Eviction Suit, the said suit was hopelessly barred under Section 20 of the Rent Act and the decree passed on such suit by wrongfully assuming jurisdiction by the learned Munsif, Small Causes Court is a nullity. Dr. Singhvi has been disputed the contention of the landlord respondent that the recording of completion of construction in the process of assessment to house tax http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11 cannot be taken as the date of computation in view of the provisions of Section 182 of U.P., Municipalities Act. 1976 by conferring that such contention is devoid of any substance. Dr. Singhvi has submitted that the said Section provides for inspection of the work of the building requiring sanction. Hence, in the case of a building which does not require sanction, being the subject matter of the eviction suit, there would be no occasion to have a date of completion recorded in the municipal records. But the only date available would be either a date of occupation or the date of first assessment coming into force. Dr. Singhvi has submitted that any construction of various dates mentioned in Explanation I to Section 2 (2) of the Rent Act in a restricted manner will make the various criteria specified therein redundant. Dr. Singhvi has, therefore, submitted that the High Court has failed to appreciate the true import of Explanation I read with proviso under Section 2 (2) of the Rent Act and on a total misconception of the facts and circumstances of the case and the materials on record has come to an erroneous finding that the eviction suit instituted in the Court of the learned Munsif, Small Causes, was maintainable and the decree for eviction passed in such suit was legal and valid. Dr. Singhvi has submitted that since the eviction suit, in the facts of the case, was not maintainable in law, the decree for eviction passed in such suit is a nullity and is of no consequence. This appeal should, therefore, be allowed by setting aside the decree for eviction and dismissing the said suit for eviction with cost. Shri Shanti Swarup Jain, the respondent herein, has appeared in person and has made submissions in support of his case. The respondent has not disputed that the eviction suit was instituted by him against the tenant appellant who was inducted by him as tenant in 1973 in the tenanted premises comprising a portion of the building which was reconstructed by him after demolishing he old structure. Sri Jain has submitted that the reconstructed shop in respect of which the appellant is a tenant was assessed to tax for the first time in 1981 and the assessment of the said newly constructed building was made effective from April 1, 1981. The eviction suit was instituted on December 19, 1990. Accordingly, Rent Act (U.P. Act No.3 of 1972) was not applicable in respect of the tenanted premises because 10 years period as contemplated under Explanation I to Section 2 (2) had not expired at the time of institution of the suit. Sri Jain has submitted that on a clear finding upon consideration of oral and documentary evidence that April 1, 1981 being the date of first effective assessment of house tax, was the date of completion of the building, the maintainability of the eviction suit was found in favour of the landlord. Sri Jain has submitted that the appellant tenant’s main contention in the said suit was that no new construction was made and the tenanted premises being in the same condition as it was in 1970, the said premises could not be held to be a newly constructed building. The tenant appellant also raised the same plea in the revision petition filed before the District Judge, Etah, assailing the decree for eviction passed by the learned Munsif of Small Causes. The said Revision Case No.41 of 1982 was disposed of by the learned Additional District Judge upholding the finding of the learned Munsif. Sri Jain has further submitted that before the trial court he filed documentary evidence showing that one Ashrafi Lal Jain was the tenant was the tenant under him at a monthly rental of Rs. 14/- and the said http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11 Ashrafi Lal having died on March 9, 1971, his heirs were arrayed as defendants. The landlord Sri Jain got possession of the tenanted premises on August 20, 1972 by executing the decree for eviction. The appellant has no connection in the tenancy in respect of the shop in which Ashrafi Lal was a tenant. But the appellant tenant made false assertion of tenancy in respect of the said tenancy of Ashrafi Lal. Sri Jain has contended that as the appellant tenant had restored to false assertions and has not come with clean hand, he is liable to be punished under the Contempt of Courts Act. Sri Jain has submitted that such false assertion as to his tenancy right in respect of shop in which Ashrafi Lal was tenant was made with an oblique purpose to rely on the earlier assessment of house tax in 1970. Sri Jain has contended that the finding of fact in the said eviction suit became final with the disposal of the said Revision Case No. 41 of 1982 and the concurrent finding of fact could not be challenged before the High Court in view of provisions of Section 100 Civil Procedure Code. After unsuccessful attempt to assail the decree for eviction before the High Court, a special leave petition was moved by the appellant tenant by suppressing relevant facts. Such Social Leave Petition (Civil) No. 4280 of 1995 was disposed of by this Court and the matter was remitted back to the High Court for deciding the date of completion of the building in question in accordance with Section 2 (2) of the said Rent Act. Sri Jain has submitted that the contention of the appellant made in ground No. V of the Special Leave Petition concerning this appeal that the court below had no jurisdiction to hold that the first assessment was made on April 1, 1981 in the absence of any document to that effect, is without any basis and incorrect on the face of assessment order dated April 1, 1981. Sri Jain has contended that Explanation I to Sub Section (2) or otherwise recorded by the local authority having jurisdiction (3) in the case of building subject to assessment, the date on which the first assessment comes into effect and where dates are different the earliest of the three dates is to be taken as the date of completion and (4) in the absence of any such report, record or assessment, the date on which it is actually occupied. Sri Jain has further contended that the date of report or any specific date of recording has not been proved by any evidence on record by the tenant appellant. In the aforesaid facts, the date of assessment made effective on April 1, 1981, is the only earliest date as referred to in Explanation I. Hence, acceptance of such date by the trial court is legal and justified. Sri Jain has also contended that the landlord in this case has discharged his burden of proving the date of completion of construction of the tenanted building with reference to first date of the assessment made effective on April 1, 1981. If the tenant appellant intends to dispute such date of completion, it was for the tenant to establish any other date of completion as specified in Explanation I but the tenant has failed to prove any other date of construction. Sri Jain has submitted that the tenant appellant cannot be permitted to allege any date of construction of the building in question in view of specific case pleaded and argued by the tenant that the tenanted premises was not constructed but the tenant had continued as tenant in the old construction. Sri Jain has submitted that jurisdiction under Article 136 of the Constitution being equitable and discretionary, the appellant does not deserve any exercise http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11 of such discretionary jurisdiction in his favour in this appeal as the appellant has resorted to falsehood and has not come with clean hands. Sri Jain has submitted that no new plea which had not been taken in the courts below can be taken before this Court for the first time. The appeal is liable to be dismissed on the ground of suppression of material evidence. The evidence assessed by the courts below should not be reappreciated or reassessed by this Court. Sri Jain has also contended that inspection report dated November 15, 1987 cannot be taken to be an inspection report contemplated under Section 182 of the Municipalities Act. The tenant appellant did not plead in the written statement that any inspection was made by the municipal authorities under Section 182 of the Municipal Act. No evidence has been led to establish that such inspection was made by the municipal authorities. It has been clearly held by the trial court that no date of actual construction has been proved in this case. Sri Jain has also contended that in the order of remand passed by this Court, the finding of the court below that in the facts and circumstances of the case, April 1, 1981 had to be taken as the date on which fresh assessment of the building was made, had not been disturbed. In the aforesaid facts, no interference is called for in this appeal and the same should be dismissed with costs. In the additional written submission filed by the respondent, it has been contended that the khoka of the shop was completed in 1973 but the rest of construction was done in piecemeal in view of certain calamities in the family of the respondent. If the entire construction had been completed in 1973, the Nagar Palika would not have issued notice for assessment in 1977-78. It has been further contended that this Court will not embark on a enquiry into the facts and evidences of the case and will not allow this Court to be converted as the court of fact. For such contention, the appellant has placed reliance on the decision in Sheonandan Vs State of Bihar (1987 (1) SCC 288). Sri Jain has contended that if the essential ingredients necessary for finding of fact have not been found by the courts below, then this Court should examine whether any injustice or wrong has been done and the burden to show that the concurrent decision of two or more Courts or Tribunals is manifestly unjust, is on the appellant. Once such burden is discharged, it is not only be right but also a duty of this Court to remedy injustice. For this contention, Sri Jain has referred to the decision of this Court in Dipak Banarjee Vs Lilabat Chakrabarty (1987 (4) SSC 188). Sri Jain has also contended that this Court has laid down that although Article 136 is couched in the widest phraseology, the jurisdiction of this Court is limited only its discretion. It has been held by this Court that this Court has jurisdiction and power to exercise all the powers of an appellate court but exercise of such power has to be regulated by the practice of this Court and the practice of the Privy Council and followed by Federal Court and also by this Court is not interfere on questions of fact except in exceptional cases which shock the conscience of the Court or the findings were made in disregard to the forms of the legal process or finding are made in violation of principles of natural justice or the decision has occassined gave and substantial injustice. Sri Jain has submitted that the High Court had considered the implication of the deeming clause in Section 2 (2) of the Rent Act as indicated in the decision of the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11 High Court in Gamunderi Devi Vs. Nand Kishore (1987 All CL. 82) and it was observed in the said decision that the date of deemed construction must be known with definiteness in order to achieve this, the legislative engrafted a legal fiction in the said Explanation I. Sri Jain has also submitted that the High Court has also placed reliance on another decision of the same High Court in Tilak Raj Vs. Debendra Singh (1975 All L R 721) wherein it was observed that a building is deemed to be constructed if it is subjected to assessment on the date with effect from which the first assessment is made. Reliance has also been made in the decision in Hriday Ram Vs. H.S. Kochar (1977 A R C 323) wherein it has been held that when a law has interposed to lay down a fiction, it is not open to fall back on the reality of the factual aspect of the matter because if the factual aspects of the matter were to be made considered then the course will be in the teeth of deeming provision. Sri Jain has submitted that the very essence of legal fiction is assumed existence of something that does not actually exist and that even though may be different from actual state of affair, yet the law does not take notice of the actual fact unless it is followed by the fulfilment of one of the conditions mentioned in Explanation I. Sri Jain has further submitted that the provision in question is a legislative device for assuming something which in reality it was not and that the mere fact that the deeming provision is expressed to be an explanation will not alter is basic character and will also not limit it to a mere explanation of substantive provision. In support of such submission, reliance has been placed in the decisions of this Court in the State of Bombay Vs. Pandurano Vinayak (AIR 1953 SC 244), G.C. Mahajan Vs. State of Maharashtra (AIR 1985 SC 1982). S. Sundaram Pillai Vs. V.R. Patturianan (AIR 1985 SC 1982). Ganpat Lodh Vs. Babalal Mohanlal (AIR 1980 SC 954). Sri Jain has also submitted that the special leave petition filed against the decision in Samundari Debi (supra) has been dismissed. Sri Jain has also submitted that for proving a negative fact, the plaintiff is not required to do anything more than substantiating his allegation prima facie. The onus to repudiate then shifts to the defendant of prove positively the assertion made by the defendant. In this case, it was for the defendant to prove date of completion of building but such proof has not ben give by the defendant. The essential distinction between burden of proof as a matter of law and pleading as a matter of fact requiring evidence to be led has been indicated by this Court. In K.S. Nangi Company Vs. Jata Shanker (AIR 1961 SC 1474). Sri Jain has submitted that in the facts of the case, no interference is called for against the well considered judgment of the High Court both on the question of fact and on question of law involved in the case. The appeal, therefore, should be dismissed with cost. After giving our careful consideration to the facts and circumstances of the case and the submissions for the respective party, it appears to us that the premises tenancy act is a beneficial legislation intended to protect the tenant from being evicted by the landlord at his will or on flimsy ground. The pleasure doctrine implicit in the Transfer of Property Act entitles the landlord to evict his tenant by determining the tenancy by appropriate notice. For such eviction, the landlord does not owe any explanation to the tenant. The action for eviction is basically actuated by the desire to evict the tenant. The U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 like http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11 other Rent Acts also envisages protection of tenant governed by the Rent Act from being evicted from the tenanted premises except on specified grounds for such eviction and on conditions for such eviction being fully complied with. There is no dispute that the defendant appellant is a monthly tenant covered by the provisions of the said Rent Act. It is appellant that for mitigating the hardship likely to be meted out to a landlord who has made new construction by incurring substantial expenses, the landlord, in case of tenancy in a newly constructed building has been favoured with exemption of the rigorous of the Tenancy Act in the matter of evicting a tenant inducted in such newly constructed premises. But such exemption is not unfettered but controlled by the provisions of Section 2(2) of the said Rent Act read with Explanation I and proviso to such Explanation I. The outer limit of the period of exemption in respect of newly constructed building is ten years. Such outer limit of the period of exemption has been introduced for balancing the equities between the landlord and tenant. In order to ensure that such exemption in favour of the landlord is not extended indefinitely, the legislature has provided a mechanism for determining the date with reference to which the building in question will be deemed to have been constructed by indicating four district alternatives. As such four dates are likely to be different, Legislature, in its anxiety to ensure that the period of exemption is not unjustly extended beyond the period intended, has indicated that such period of exemption is to be reckoned from the date which is on the earliest point of time amongst four different deemed dates as provided for in Explanation I to sub-section (2) of Section (20 of the U.P. Rent Act. The four different dated for the purpose of compensation as to whether dates for the purpose of compensation as to whether a newly constructed building is ten years old or not are as follow :- (i) the date on which completion of the building is reported to the local authority. (ii) the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction. (iii) the date on which the assessment of property tax is first made. (iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied. In our view, in the facts of the case, both the dates, namely, the date on which the completion of the building is reported to the local authority and the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction, are available. On January 30, 1978, the building constructed by the respondent landlord was inspected by the Section Head Clerk of the Etah Municipality and a report was filed by the said Head Clerk recording that the ground floor and the first floor had been rented at Rs. 75/- and Rs. 60/- per month respectively and the second floor of the building was in possession of the respondent owner. In the said report it was also indicated that the shop was well constructed. The Etah Municipality thereafter issued a letter on January 30, 1978 to the respondent landlord that the date of hearing the objection to the assessment of house tax was fixed at 11.00 A.M. on http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11 February 1, 1978. Such notice as a consequential action on the report of the Head Clerk only indicates that the Municipality has also noted the factum of completion of the building at least from the date of receipt of the said report. In our view, Dr. Signhvi has rightly contended that the import of the expression "otherwise recorded" used in Explanation I to Section 2(2) of the Rent Act should be construed in a broad based manner having wide amplitude, keeping in mind the beneficial purpose of U.P. Rent Act for protecting the interest of tenants covered by the said Rent Act. We may also indicate here that such recording of the date of completion of the tenanted premises in question fully satisfies the recording of deemed date of construction under Section 2(2) of the U.P. Rent Act and it is not necessary to investigate whether for the purpose of assessment of rates and taxes of a building, inspection of the building had been done strictly in accordance with the Municipality Act. 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, can not 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. The other contentions raised by the respondent landlord about the finality of the concurrent finding of fact or deemed date of construction and impropriety of interference in exercise of discretionary remedy under Article 136 of the Constitution cannot be accepted being devoid of any substance. 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 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 the 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 involved a determination of mixed question of law and fact. It is the case of the landlord that after evicting erstwhile tenant, the appellant tenant was inducted for the first time in 1973 at a monthly rental of Rs. 75/-. It is not in dispute that the tenant appellant is in exclusive possession of the shop room in question as a tenant under the respondent landlord. Such shop room is undoubtedly a separate unit of construction and the same in possession of the tenant appellant. The very fact that the appellant was inducted as tenant in respect of the said shop room clearly indicates that such unit of tenancy had been constructed as a unit fit for occupation at least in 1973 when the appellant was inducted as a tenant in such shop room. The report of the Head Clerk of the Municipality is also to the effect the shop room is well constructed. The eviction suit was instituted only in 1990. It will be travesty of justice if such suit is decreed in favour of the landlord by allowing the untenable plea that the premises in question was constructed within a period of ten years from the date http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11 of the institution of the suit. The appeal is, therefore, allowed and the impugned judgment of the High Court is set aside and the eviction suit stands dismissed with costs.