Civil Revision No. 4258 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 4258 of 2005 Date of decision: 8.12. 2009 Sewa Singh ......petitioner Versus The Punjab Wakf Board .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Chaudary, Sr. Advocate with Mr.F.S.Virk, Advocate, for the petitioner. Mr.C.B.Goel, Advocate, for the respondent. **** SABINA, J. Plaintiff-Punjab Wakf Board filed a suit for possession and for recovery of Rs.4830/- , which was decreed by the Tribunal vide judgment and decree dated 11.1.2005. Hence, the present petition by the defendant. Brief facts of the case, as noticed by the Tribunal in para Nos. 1 to 6 of its judgment, are as under:- “1. Suit shop, morefully described in the cause title of the plaint was given on rent to the defendant by the plaintiff at monthly rent of Rs.35/- vide Civil Revision No. 4258 of 2005 2 allotment order dated 18.9.1979 for a period of 11 months from 1.9.1979. Defendant paid the rent of the shop uptil 31.3.1991 and failed to make the payment of rent from 1.4.1991 onwards without any reasonable cause which constrained the plaintiff to terminate the tenancy of the defendant qua the suit shop w.e.f. 1.10.2002 by serving upon him registered notice dated 26.8.2002 under Section 106 of the Transfer of Property Act. 2. So, after the termination of tenancy, the possession of the plaintiff on the suit shop is unauthorised since 1.10.2002 and he is bound to deliver possession, thereof, to the plaintiff. Provisions of East Punjab Urban Rent Restriction Act, 1949 are not applicable to the Wakf properties located in the State of Punjab in view of the notification dated 19.5.1976 issued by the Governor of Punjab. The defendant also failed to make payment of arrears of rent of the suit shop from 1.4.1991 to 30.9.2002 at the rate of Rs.35/- per month without any reasonable cause, as such, the plaintiff is entitled to recover Rs.4830/- as arrears of rent from the defendant. Apart from that, the plainitff is entitled to recover Rs.175/- as amount of mesne profits for illegal use and occupation of the suit shop from 1.10.2002 when the tenency was Civil Revision No. 4258 of 2005 3 terminated and upto 28.2.2003 when the instant suit was filed. 3. Against the background, the plaintiff, herein, who is owner of the suit shop, morefully described in the case title of the plaint, through its Estate Officer instituted instant suit for recovery of possession of the suit shop, morefully, described in the cause title of the plaint, as also for recovery of Rs.4830/- as arrears of rent of the suit shop at the rate of Rs.35/- per month for the period from 1.4.1991 to 30.9.2002 and Rs.175/- as mesne profits at the rate of Rs.35/- per month for the period from 1.10.2002 to 28.2.2003. 4. Defendant in the written statement disputed the competency of the Estate Officer of the plaintiff Board to file the suit or any authorisation in his behalf to do the same but admitted himself as tenant in the suit shop at a monthly rent of Rs.35/- w.e.f. 1.9.1979. He further averred that he never refused to pay rent of the suit shop to the plaintiff; rather the rent was not accepted by the latter, albeit, repeated requests. It was also denied that the tenancy of the defendant has been terminated on the ground of non-payment of rent w.e.f. 1.10.2002 through notice dated 26.8.2002 under Section 106 of the Transfer of Property Act. It was Civil Revision No. 4258 of 2005 4 further averred that no valid notice was served upon him. It was also denied that he has been in illegal possession of the suit shop since 1.10.2002 or that he is not entitled to remain in possession, thereof, or that the plaintiff is entitled to get possession, thereof. 5. It was further averred in the written statement by the defendant that the provisions of East Punjab Urban Rent Restriction Act are applicable and notification in this regard was described as invalid and unconstitutional. It was further averred that when the employees of the plaintiff refused to accept rent, he vide application under Section 31 of the Relief of Indebtedness Act deposited a sum of Rs.2400/- as arrears of rent of the suit shop at the rate of Rs.35/- per month and for chobara at the rate of Rs.15/- per month, total Rs.50/- for the period from 1.4.1991 to 31.3.1995 amounting to Rs.2400/- vide challan No.8 dated 2.2.1994 in the court of learned Additional Civil Judge (Sr.Divn.) Nabha and notice of this application was issued to the plaintiff who appeared through counsel and refused to accept the same. It was further averred that again on receipt of notice, the defendant sent rent for the period from 1.4.1999 to 31.12.2002 of the suit shop at the rate of Rs.35/- per month amounting to Civil Revision No. 4258 of 2005 5 Rs.4935/- and the postal money order was not accepted by the plaintiff and now after deducting Rs.1680/- already deposited as rent of the shop for four years, the balance of arrears of rent and future rent for the period from 1.4.1991 to 31.3.2005 in the sum of Rs.4200/- are being tendered in the Court along with interest amounting to Rs.1410/- at the rate of Rs.9% per annum, total Rs.5610/- for payment, thereof, to the plaintiff or got deposited in the Court. It was further averred that future rent shall be deposited as and when due and as such this ground is no longer available to the plaintiff. 6. It was further averred that the defendant has been in possession of the suit shop as tenant since 1979 and is doing his business as tailor master, has no other source of living and as such the action of the plaintiff is candidly discriminatory as large number of properties owned by the plaintiff have been leased out to various tenants in the city but no proceedings are being taken against any one of them for the reasons best known to them. So, it was averred that if the defendant is ejected from the suit shop, then he shall be on the road and without any source of living. It was also averred that the plaintiff has no cause of action to Civil Revision No. 4258 of 2005 6 file the suit. Additional objections of maintainability of suit and estoppel were also taken and prayer for dismissal of suit was, thus, made.” On the pleading of the parties, following issued were framed by the Tribunal. 1. Whether the plaintiff is entitled to possession of the suit property? OPP 2. Whether the plaintiff is entitled to recover the suit amount? OPP 3. Whether the plaintiff is entitled to recover mesne profits from the defendant, if so, at what rate? OPP 4. Whether the suit is filed by the competent person? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 7. Relief. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed. The suit property is admittedly owned by the Wakf Board. The same had been given on lease. Vide allotment order Ex.P-5, the shop in dispute was given on rent to the defendant at a monthly rent of Rs.35/- for eleven months. Since the defendant had defaulted in payment of rent, a notice was issued to the defendant under Section Civil Revision No. 4258 of 2005 7 106 of the Transfer of Property Act, 1882 to vacate the shop in question and hand over the possession to the Wakf Board. Admittedly, since the property belongs to the Wakf Board, the provisions of Rent Act do not apply in the present case in view of the notification dated 19.5.1976. The defendant placed reliance on Ex.D-3 to the effect that the rent had been paid by the defendant. However, Ex.D-3 is the order on an application under Section 31 of the Punjab Relief of Indebtedness Act, whereby the rent was deposited from 1.4.1991 to 31.5.1995. However, thereafter there is nothing on record to suggest that the rent had been paid for the entire period. The acknowledgments regarding money order are mark D2 and D3. The same have not been duly proved but even as per the same, the rent was tendered only up to December 2002. The plaintiff, on the other hand, has claimed that the rent had not been paid up to 28.2.2003. In these circumstances, the learned Tribunal had rightly decreed the suit of the plaintiff. Hence, the impugned order does not suffer from any material irregularity and illegality warranting interference by this Court. Accordingly, this petition is dismissed. (SABINA) JUDGE December 08, 2009 anita