RSA No. 3588 of 2009 (O& M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM No. 11025-C of 2009 and
RSA No. 3588 of 2009 (O&M)
Date of Decision: October 08, 2009
Narinder Pal ...... Appellant
Versus
Jatinder Mohan Duggal ...... Respondent
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr.Puneet Jindal, Advocate
for the appellant.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
CM No. 11025-C of 2009
For the reasons recorded in the application, the same is
allowed. The deficiency of Court fee in filing the present appeal is made
good.
RSA No. 3588 of 2009 (O&M)
This appeal has been filed against the concurrent judgments of
the Courts below decreeing the suit of the respondent for eviction of the
appellant from the premises in dispute.
The following questions have been proposed:-
i) Whether failure to frame material issues which goes to root
of the matter and especially which ousted the jurisdiction of
RSA No. 3588 of 2009 (O& M) 2
the civil courts prejudicially affect the appellant?
ii) Whether failure to consider the documentary evidence by
both the learned courts is legal and valid in view of the law
laid down by the Hon’ble Supreme Court in AIR 2002
Supreme Court 2849 and in 20023) Civil Court Cases 680
(S.C.)?
iii)Whether the courts below have rightly interpreted Section 2
(j) of EPURR Act on the basis of wrong interpretation of
decision in Gian Chand v.Parkash Chand and ors 1981 (1)
Rent Control Reporter 532 (P&H)?
iv)Whether admission of the respondent No.1 (plaintiff)
admitting the premises as Karkhana could be ignored by the
courts below?
v) Whether demised property measuring 1 kanal and 6 marlas
situated within Municipal limits and rented out along with
industrial electric connection is out of the purview of Rent
Act?
vi)Whether the receipt of rent by the respondent No.1 after the
stipulated period i.e. Period of 11 months clothe appellant
with the right of statutory tenant after 1.2.1984 (date of Rent
Note)?
vii)Whether the wrong interpretation and misapplication of law
given in definitions of Building, Rent Land and non
consideration of definition of Residential Building by the
learned additional District substantially affect the rights of
the appellant and oust the jurisdiction of Civil Courts?
Learned counsel has primarily argued questions No. (iii), (iv), (v) and
vii). The main thrust of the argument is that the respondent had himself
impliedly admitted in an earlier proceeding that the land was let out for
business purposes and, therefore, the property in dispute came within the
purview of Section 2(f) and thus the proceedings could only have been
initiated under The East Punjab Urban Rent Restriction Act, 1952
(hereinafter referred to as the Act). In this regard reference is being made to
RSA No. 3588 of 2009 (O& M) 3
Ex.D1which were said to be pleadings in previous ejectment application
filed by the respondent against the appellant. It is in this context that
question No.(ii) has also been argued because admittedly after tendering his
affidavit in examination-in-chief the appellant did not appear for being
cross-examined and his evidence was closed at that stage. The learned
Courts below have primarily relied upon the rent note in which, two salient
points were mentioned; (i) that the premises was an unbuilt plot of the land
and (ii) no purpose was mentioned therein. It is in this connection that the
Courts below have held that the appellant has not been able to establish that
the land was let out for the purpose of trade and business. Courts have
rightly considered that in the absence of the appellant having offered
himself for cross-examination no reliance could be placed on his testimony.
Learned counsel has argued that in Ex.D1, which was the earlier petition
filed in respect of the same property, the landlord had impliedly admitted
that the premises had been let out for business purposes. However, in my
opinion in the present suit it was incumbent upon the appellant to establish
that the premises in dispute, which was admittedly an open land, was let out
for business purposes. Learned counsel has also argued that the very fact
that the plot had a shaft, eight pulleys and one 10 HP motor would also
show that the premises was intended to be used for business primarily since
permission had been granted in the rent note itself to erect any building on
the plot in dispute. However, learned counsel is not in a position to deny
that the appellant did not continue with the electricity connection and the
same was disconnected. Thus even if by a deductive process ( on the basis
of earlier proceedings) the premises was originally let out for a commercial
purpose, the fact that the electricity connection was disconnected would
RSA No. 3588 of 2009 (O& M) 4
clearly show that at least the appellant never used the same for any
commercial purpose. In my opinion the learned courts below have correctly
relied upon the decisions of this Court in Gian Chand v. Parkash Chand
and others reported as 1981(1) Rent Control Reporter 532 and Pandit
Bishan Sarup v. Prem Narain reported as 1986(1) Rent Control reporter
369 to hold that when a vacant unbuilt plot of land without any building
existing upon it is hired on rent without any purpose being mentioned, it
cannot be presumed that the same falls within the definition of Section 2(f)
of the Act.
In this view of the matter holding the questions proposed
against the appellant this appeal and the application for stay as well are
dismissed. No costs.
Since the main case has been decided, the pending Civil Misc.
Applications, if any, stand disposed of.
(AJAY TEWARI)
JUDGE
October 08, 2009
sunita