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. **** 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