R.S.A.No. 1345 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1345 of 2009 (O&M) Date of decision: 10.7. 2009 Mamam Singh Saini ......Appellant Versus Dropdi Devi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashok Kaushik, Advocate, for the appellant. Mr.Pankaj Midha, Advocate, for the caveator-respondent. **** SABINA, J. Plaintiff- Dropdi Devi filed a suit seeking a decree of possession of shop in dispute. The suit of the plaintiff was decreed by the Civil Judge (Sr.Divn.) Hansi vide judgment and decree dated 29.9.2007 and the same were upheld by the District Judge, Hisar vide judgment and decree dated 7.8.2008. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1345 of 2009 (O&M) 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts of the plaintiff's case are; that she is the owner of one shop having house tax unit No.1116D/16 bounded as under:- East: Pakka Mateled Road Kali Devi Hansi. West: Shop of the plaintiff. North: Property of Jai Gopal South: Property of plaintiff, situated opposite Kali Devi Mandir, Kali Devi Road, Kali Devi Chowk within the municipal limits Hansi; that the above said shop was newly constructed in December, 1995 along with the other properties, hence the shop is outside the purview of the Rent Act; that the defendant is a continuous defaulter against whom the rent is due since 1.10.2000 @ 1900/- per month which he had not paid or tendered in spite of repeated demands and misbehaved with the plaintiff when rent was demanded, upon which the plaintiff got issued a notice through her counsel Sh. K.K.Khurana, Hansi, on 19.6.2004 by which the tenancy of defendant was terminated and the defendant was called upon to deliver the vacant possession of the shop in dispute till 31.7.2004 and also demanded the arrears of rent. The said notice has been served upon the defendant and the defendant replied the said through his counsel Shri R.S.A.No. 1345 of 2009 (O&M) 3 K.B.Jain, Advocate, Hansi, which is false and as such the defendant has not delivered the vacant possession of the shop in dispute and the arrears of rent had also not been paid by him. It is alleged that after termination of tenancy of defendant, the possession over the shop in dispute is that of trespasser and defendant is in arrears of rent since 1.10.2000 to 31.7.2004, which the plaintiff is entitled to recover @ Rs. 2% per month. It is further alleged that such like shops can fetch Rs.6,000/- per month, hence the plaintiff is also entitled to claim from the defendant the compensation for use and occupation since 1.8.2004 till the date of delivery of the possession. It is further alleged that the defendant was asked several times to vacate the shop in dispute to deliver the vacant possession of the same to plaintiff and to pay the entire arrears of rent but the defendant kept in putting of by one pretext or other and lastly on 2.8.2004 he refused to accept the request of the plaintiff. Hence, the present suit was filed. 3. Notice of the suit was issued to the defendant who appeared and filed written statement taking various preliminary objections that notice dated 19.6.2004 is against law and facts and is illegal; that civil Court has got no jurisdiction and that site plan is not scaled one and not R.S.A.No. 1345 of 2009 (O&M) 4 in accordance with the High Court Rules & Orders; that site plan alleged to be got approved from Municipal Council, Hansi are also wrong and procured one as on the site where the shop in dispute is situated a house was in existence and the rooms of that house were converted into shops by opening their gates towards Kali Devi Road and G.T.Road, Hansi; that suit is not maintainable and the suit of the plaintiff is time barred and plaintiff cannot demand the rent for more than three years however, from the fear of ejectment, the defendant is tendering the rent as claimed by the plaintiff since 1.3.2001 to 30.11.2004 for 45 months amounting to Rs.15,750/- along with the statutory interest which comes to Rs. 2415/-, amounting to Rs.18,165 because the defendant has already paid the rent of the shop in dispute up till November, 2000 to Jai Bhagwan son of the plaintiff and for the month of December, 2000, January, 2001 and Feburary 2001 i.e. for three months @ Rs.350/- per month. including house tax amounting to Rs.1,050/- was deposited in rent petition under Section 6A of Rent Act by the order of Sh. D.N.Bhardwaj, the then Rent Controller, Hansi, on 19.2.2001 and now the defendant is in arrears of rent since 1.3.2001 because of the reasons that plaintiff and her son refused to accept the rent against a valid receipt. R.S.A.No. 1345 of 2009 (O&M) 5 It is further alleged that out of the above tendered amount, nine months rent of the shop in dispute is time barred because the plaintiff is legally bound to receive the rent for 9 months along with statutory interest, which the defendant seeks a decree of the said amount to be adjusted in future rent. Still further, it has been stated that suit of plaintiff is false and frivolous and that plaintiff has suppressed the true and material facts from the Court. In fact, the true facts are that the shop in dispute was taken on rent by the defendant in the year 1997 at the rate of Rs.350/- per month including all taxes and since then plaintiff is doing his business over the shop in dispute. The rent upto 30.11.2000 was paid by the defendant to the son of the plaintiff named Jai Bhagwan son of Deva Ram but he never issued any receipt to the defendant which was collected by him every month from the defendant. On 15.11.2000 the plaintiff and her son came over the shop in dispute or to pay same for the month of December, 2000 then and there otherwise his belongings shall be thrown on the road and he will be dispossessed from the shop in dispute. The defendant filed a civil suit No.139-C on 18.11.2000 against Smt.Dropti and Shri Jai Bhagwan which was decreed by the court of Sh.J.B.Gupta on 15.1.2001 in which R.S.A.No. 1345 of 2009 (O&M) 6 Sh.Sanjeev Yadav, Advocate was also appointed as a local commission. It is further alleged that thereafter when the plaintiff and her son refused to accept the rent of the shop in dispute @ Rs.350/- per month including house tax amounting to Rs.1050/- in rent petition under Section 6A of the Haryana Urban (Control of Rent & Eviction) Act by the order of Shri D.N.Bhardwaj, the then Rent Controller, Hansi on 19.2.2001. Now the defendant is in arrears of rent since 1.3.2000 till date because of the reason that plaintiff and her son refused to accept the rent against a valid receipt. Still further, on merits, it has been stated that previously this property was having house tax No.136/17 which was subsequently renumbered when the room of the said house were converted into shops. It is specifically denied that the shop in dispute was newly constructed in the month of December, 1995; that defendant is defaulting tenant and is in arrears of rent since 1.10.2000 till 31.7.2004; that the defendant has misbehaved the plaintiff and that the notice dated 19.6.2004 is illegal and it was properly replied through counsel of defendant Sh.K.B.Jain, which was duly received by Sh.Bhoop Singh, clerk of Sh.K.K.Khurana, Advocate on 29.7.2004. It is further denied that the tenancy of the defendant has been terminated or could R.S.A.No. 1345 of 2009 (O&M) 7 be terminated by issuing notice as alleged. The plaintiff is not entitled for the possession of the shop in dispute as claimed. It is further denied that defendant is an arrears of rent since 1.10.2000 till 31.7.2004 and that the plaintiff is entitled for the rent @ Rs.1900/- per month besides the interest @ Rs.2/- per month as alleged. It has been stated that it is incorrect that the plaintiff is entitled for vacant possession of the shop in dispute as alleged. It is further denied that the shop can fetch rent to the tune of Rs.6,000/- per month as alleged. It is further denied that the plaintiff is entitled for the alleged compensation for use and occupation since 1.8.2004 till the date of delivery of possession as claimed. It has been further stated that the defendant filed a civil suit No.139-C of 18.11.2000 against plaintiff Dropti Devi and Jai Bhagwan which was decreed by the Court of Sh.J.B.Gupta, the then ACJ Hansi and rent petition under Section 6-A of the Rent Act was also filed by the defendant against the plaintiff and Jai Bhagwan in which the then Rent Controller, Hansi, vide his order dated 19.2.2001 directed the defendant to deposit the rent of the shop in dispute for the month of December 2000, January 2001 and February 2001. The other assertions of the plaintiff have been denied and dismissal of the suit has been prayed for.” R.S.A.No. 1345 of 2009 (O&M) 8 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the possession of the disputed property? OPP 2. Whether the plaintiff is entitled to recover the amount of Rs.87,400/- with interest @ Rs.2/- per month from the institution of the suit till the realization of the decretal amount and Rs.6,000/- per month as use and occupation charges from 1.8.2004 as alleged? OPP 3. Whether the plaintiff has not come to the Court with clean hands if so its effect? OPD 4. Whether the notice dated 19.6.2004 is against law and facts and illegal as alleged? OPD 5. Whether the civil court has no jurisdiction to try and entertain the present suit ? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is time barred? OPD 8. Relief. ” After hearing learned for the parties, I am of the opinion that the present appeal deserves to be dismissed. The only argument raised by learned counsel for the appellant is that the Courts below had erred in decreeing the suit of the plaintiff, as the shop in dispute was very old and the exemption R.S.A.No. 1345 of 2009 (O&M) 9 as envisaged under Section 1 (3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Rent Act') was not applicable to the facts of the present case. Learned District Judge in the impugned judgment has observed that the rent note Ex.P-2 was executed in favour of Sajjan Kumar, who was tenant in the shop in dispute prior to the defendant. As per the said rent note, which was executed on 2.8.1996, the shop in question was newly constructed and was given on rent for 11 months @ Rs.1,200/- per month. After the shop was vacated, plaintiff inducted defendant as a tenant in the year 1997. The case of the defendant-appellant is that the shop in question was constructed in the year 1994 by demolishing the old construction. In these circumstances, copy of the assessment year prior to the year 1999- 2000 Ex.P-3 was required to be produced on record so that it could be held that the shop in dispute had been constructed in the year 1994 as alleged by the appellant. The plaintiff became owner of the property in question on the basis of civil Court decree. Learned trial Court has observed that a perusal of the site plan Ex.D-16 does not indicate that the portion which had come to the plaintiff was having construction. Learned counsel for the appellant has failed to controvert the said factual position. In these circumstances, the Courts below had rightly held that the defendant/appellant had failed to establish that the shop in question has been constructed in the year 1994 and R.S.A.No. 1345 of 2009 (O&M) 10 not in the year 1996 as alleged by the plaintiff. Defendant had also failed to establish that the shop in dispute had been given on rent for more than ten years prior to the filing of the suit which would bring his tenancy under the mischief of the Rent Act. Hence, in the present case, the provisions of the Rent Act were not applicable. The plaintiff was entitled to seek eviction of the defendant by serving the notice Ex.P-10 regarding termination of tenancy. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 10, 2009 anita