R.S.A.No. 1745 of 2006(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1745 of 2006(O&M)
Date of Decision:August 03, 2009
Ramesh Chand
---Appellant
versus
Om Parkash and another
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr.Arihant Jain,Advocate,
for the appellant
Mr.Arun Jain, Senior Advocate,
for Mr. Vishal Sharma, Advocate
for respondents No. 1 and 2
***
SABINA J.
Plaintiff – Om Parkash and Shiv Narain had filed a suit for
possession by way of ejectment. Additional Civil Judge ( Senior Division),
Jind vide judgment and decree dated 16.6.2000 dismissed the suit of the
plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the
same was allowed by District Judge, Jind vide judgment and decree dated
23.6.2006. Hence, the present appeal by the defendants
The facts of the case as noticed by the learned District Judge,
in paras 1 to 3 of its judgment read as under:-
R.S.A.No. 1745 of 2006(O&M) {2}
“Om Parkash and Shiv Narain sons of Des Raj brought a suit
for ejectment of defendants Rmesh Chand son of Wazir Chand
and Harans Lal son of Uttam Chand from a shop situate near
Ghanta Ghar, Jind, as described in the head note of the plaint.
As per averments in the plaint, the shop in question was
originally let out to the defendants by Shanti Devi, the mother
of the plaintiffs, through her husband Des Raj and after her
death an oral partition took place on 10.4.1988 between the
legal heirs of Shanti Devi whereby this shop fell to the share of
the plaintiffs exclusively and a memorandum of partition was
prepared on 22.4.1988. On the basis of partition, a decree was
also passed in their favour by the Civil court on 28.4.1988. In
this way, the title of the plaintiffs as owners and as landlords
was undisputed and the defendants occupied the demised
premises as tenants under the plaintiffs till their tenancy was
terminated by a notice dated 3.5.1988 sent by the plaintiffs
through their counsel and which had been served on defendant
Ramesh Chand by registered post on 4.5.1988. Vide that notice
the defendants were required to vacate the demised premises
after expiry of clear 15 days from the date of service. Cause of
action arose on 20.5.1988 for eviction when the defendants
failed to vacate the demised shop and failed to pay arrears of
rent from 1.4.1988 to 20.5.1988 at the rate of Rs. 970/- per
month amounting to Rs. 1,616- 67 paise and for mesne profits
from 21.5.1988 to 24.5.1988 at the rate of Rs. 60/- per day
amounting to Rs. 240/-. The disputed shop having been
R.S.A.No. 1745 of 2006(O&M) {3}
constructed and completed by 11.10.1978, the same is exempt
for 10 years from the purview of Haryana Urban (Control of
Rent and Eviction)Act, 1973 and, as such, Civil court has got
jurisdiction in the matter. The plaintiffs prayed for a decree for
possession of the disputed shop and for recovery of Rs. 1,616-
67 paise as arrears of rent and damages/mesne profits from
21.5.1988 to 24.5.1988 amounting to Rs. 240/- and also made
prayer for damages/mesne profits at the rate of Rs. 60/- per day
from the date of institution of the suit till the date of recovery
of possession with interest.
In his written statement, defendant No. 1 Ramesh
Chand controverted the case of the plaintiffs. He admitted that
the defendants had taken a shop on rent from Shanti Devi
through her husband on a monthly rent of Rs. 700/- but asserted
that the boundaries of the shop described in the plaint are not
correct. He was not aware about the death of Shanti Devi and
the alleged partition among her legal heirs and about the
passing of a decree by the court in favour of the plaintiffs on
28.4.1988. Defendant No. 1 averred that all the legal heirs of
deceased Shanti Devi have not been made party to the suit and
the suit is, thus, had on account of non-joinder of necessary
parties. According to him, no notice of termination of tenancy
was served on him. He pleaded that there is no question of
termination of tenancy on 3.5.1988 when Des Raj (father of the
plaintiffs) had already received rent on 20.2.1988 for the period
1.1.1988 to 31.5.1988. It was also disclosed in the written
R.S.A.No. 1745 of 2006(O&M) {4}
statement of defendant No. 1 that initially the rate of rent of the
shop in dispute was Rs. 700/- and due to pressure of Des Raj
and imposition of house-tax, it was enhanced to Rs. 970/-
(including house-tax). Defendant No. 1 asserted that the
defendants are still occupying the demised shop as tenants and
are always ready and willing to pay rent from 1`.6.1988
onwards to the lawful owners/claimants. It is also the stand of
defendant No. 1 that construction of the shop was not
completed on 11.10.1978 as alleged in the plaint. His version
is that period of 10 years had expired much before filing of the
suit and only the Rent Controller has jurisdiction in this matter
and jurisdiction of civil court is barred. In addition, defendant
No. 1 raised a plea that the suit is not maintainable in the
present form.”
On the pleadings of the parties, trial court framed the following
issues on 15.9.1989:-
“(1)Whether the plaintiffs are the owners of the shop in dispute,
as alleged? OPP
(2)Whether the construction of the shop in dispute was
completed by 11.10.1978, as alleged? OPP
(3)Whether the tenancy of the defendants stood terminated by a
valid notice dated 3.5.1988? OPP
(4)Whether the Civil Court has no jurisdiction in the matter ?
OPD
(5)Whether the suit is bad for non-joinder of parties? OPD
(6)Whether the suit is not maintainable in the present form?
R.S.A.No. 1745 of 2006(O&M) {5} OPD (7)Relief.The following additional issues were framed by the learned trial
court on 6.2.1990:-
6(A) Whether the defendants are in arrears of rent of Rs.
1616.67 for the period from 1.4.1988 to 20.5.1988 @ Rs.
970/- per month and whether the plaintiffs are entitled to
recover this amount from the defendants? OPP
6(B) Whether the defendants have paid the rent of the
premises in question to Des Raj upto 31.5.1988, if so, its
effect? OPD
6(C) Whether the plaintiffs are entitled to recover mesne
profits of the period from 21.5.1988 to 24.5.1988
amounting to Rs. 240/- at the rate of Rs. 60/- per day?
OPP
6(D) Whether the plaintiffs are entitled to mesne
profits/damages at the rate of Rs. 60/- per day from the
date of the suit till the delivery of the possession along
with interest at the rate of 12% per annum as alleged in
the plaint? OPP
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff had filed a suit for ejectment of the defendants from
the shop in dispute after serving a notice under Section 106 of the Transfer
of Property Act, 1882( hereinafter referred to as “the TP Act”). The case of
the plaintiff was that the Haryana Urban (Control of Rent and Eviction) Act,
R.S.A.No. 1745 of 2006(O&M) {6}
1973(hereinafter referred to as “the Rent Act”), was not applicable to the
facts of the present case as the suit for ejectment had been filed within a
period of 10 years from the completion of the shop.
On the other hand, case of the defendants was that the suit
instituted was not maintainable and the only remedy available to the
plaintiff was to approach the Rent Controller for eviction as a period of 10-
years had already elapsed from the completion of the shop in question.
The case of the plaintiff was that the shop in question was
competed in October, 1978 and was rented out in the same month to the
defendants. Ex. PX is the rent note executed between the parties.
Defendant No. 1-Ramesh Chand while appearing in the witness box did not
deny his signatures on the rent note Ex. PX. He had also admitted that the
rent note had been executed when he had taken the shop in dispute on rent
and the rate of rent was Rs. 700/- per month with effect from 18.10.1978.
A perusal of the rent note Ex. PX reveals that the shop in
question was a newly constructed shop which was given on rent to the
defendants. Building plans Exs. PW-3/A and PW-3/B also reveal that the
shop in question was constructed after getting the building plans sanctioned
from the Municipal Committee. As per the endorsement, the sanction was
made on 6.7.1978. In these circumstances, courts below had rightly held
that the suit had been filed within 10 years of competition of shop in
question as such the provisions of the Rent Act were not applicable. Notice
Ex. P-7 was duly served upon the defendants in terms of Section 106 of the
TP Act. No reply was ever furnished by the defendants to the said notice.
Hon’ble the Apex Court in the case of Kishan alias Krishan
Kumar etc. vs. Manoj Kumar etc. AIR 1998 Supreme Court 999 has
R.S.A.No. 1745 of 2006(O&M) {7}
held as under:-
“There is no provision in the Act taking away the jurisdiction
of a Civil Court to dispose of a suit validly instituted. There is
also no provision preventing the execution of a decree passed
in such a suit. Section 13(1) does not expressly refer to
execution of a decree for possession. On a reading of all the
provisions of the Act, it is evident that it has not prevented a
Civil Court from adjudicating the rights accrued and the
liabilities incurred prior to the date on which the Act became
applicable to the building in question. If the Legislature had
intended to take away the jurisdiction of the Civil Court to
decide a suit which had been validly instituted, it would have
been worded differently. The purpose for which the exemption
is granted statutorily under Section 1(3) is to encourage
construction of new building. That purpose would be defeated
if the owner of the building is deprived of his right to get
possession of the building unless he get a decree within a
period of ten years from the date of its completion. In fact the
logical consequence of the argument of the appellants if
accepted would be that even if a decree is obtained by the
landlord within ten years from its completion it cannot be
executed after the expiry of the said period of ten years as such
execution would not be in accordance with the provisions of
the Act. It is common knowledge that a proceeding in a Civil
Court for recovery of immovable property could be dragged on
by the defendant easily for a period of ten years or more and
R.S.A.No. 1745 of 2006(O&M) {8}thereby any tenant whose tenancy had been terminated validly
before the suit would successfully make the proceeding
infructuous by prolonging the litigation. The argument of the
appellants cannot be accepted as otherwise the purpose of
exemption would get defeated.
Thus it is seen that this Court has been consistently
taking the view that a suit instituted during the period of
exemption could be continued and a decree passed therein
could be executed even though the period of exemption came
to an end during the pendency of the suit. The only discordant
note was struck in Vineet Kumar v. Mangal Sain Wadhera,
(1984) 3 SCC 352: (AIR 1985 SC 817). We have noticed that
several decisions subsequent thereto have held that Vineet
Kumar is not good law. We have already construed the
relevant provisions of the Act and pointed out that there is
nothing in the Act which prevents the Civil Court from
continuing the suit and passing a decree which could be
executed.”
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
August 03, 2009
PARAMJIT