IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3990 of 2009 and C.M. No. 12141-C of 2009 Date of Decision : November 05, 2009 Kapil ....Appellant Versus Kharaiti Lal .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ashok Sharma Nabhewala, Advocate for the appellant. T.P.S. MANN, J. Suit filed by the plaintiff-respondent for possession of shop situated at Model Town, Pinjore and for permanent injunction so as to restrain the defendant-appellant from sub-letting the same to some other person, was decreed by the learned trial Court on 24.4.2008. The first appeal filed by the defendant was dismissed by learned lower appellate Court on 19.5.2009. The defendant is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff, Chaman Lal, father of the defendant, was inducted as a tenant in the shop in question on a monthly rent of Rs.600/- vide rent deed dated 8.12.2001. Later on, on the request of father of the defendant, fresh rent note was executed on 1.12.2004, as the defendant wanted to avail loan facility from the bank. The defendant committed default in paying the rent for the period from 1.5.2004 to 30.4.2005, despite repeated requests. He was also asked to vacate the shop as the plaintiff did not want to keep him as a tenant any R.S.A. No. 3990 of 2009 (O&M) -2- further. The plaintiff also terminated the tenancy by issuing a legal notice dated 7.5.2005. Despite the same, the defendant failed to pay the arrears of rent and also to vacate the suit property. Hence, the present suit. The suit was contested by the defendant wherein he denied all the averments made in the plaint. However, he admitted the execution of the rent note dated 1.12.2004. It has been submitted on behalf of the defendant-appellant that the provisions of Haryana Urban (Control of Rent and Eviction) Act (for short 'the Act') were applicable to the premises in question as construction was much before the year 1998. Under these circumstances, the plaintiff could not seek ejectment of the defendant by filing suit for possession. The suit was filed in the year 2005. According to the plaintiff, he had carried out the construction of the suit property in the year 1998. He denied that the construction was an old one attracting the provisions of the Act. While appearing as PW1, the plaintiff specifically deposed that the construction was made in the year 1998. He denied the suggestion put to him in his cross-examination that the construction was much before the year 1998. In order to rebut this plea of the plaintiff, the defendant was required to lead some evidence but no such evidence was brought on the record. Alongwith the present appeal, the defendant-appellant had filed C.M. No.12141-C of 2009 for permission to lead additional evidence. According to him, the shop in question was constructed 20 years back (more than 10 years old). When the suit was pending, he had requested his counsel to summon Smt. Raminder Kaur, Member of Block Samiti, who would have deposed regarding the construction being more than 10 years old. Somehow the counsel representing him R.S.A. No. 3990 of 2009 (O&M) -3- did not summon the aforementioned Raminder Kaur. In support of his stand, the appellant has attached the declaration dated 17.9.2009 (Annexure P1) made by aforementioned Raminder Kaur stating therein that the shop was constructed before 1994. I have perused the declaration (Annexure P1) made by Raminder Kaur, Member, Block Samiti. She mentioned therein that she was residing at village Manakpur Thakur Dass for the last 20 years and the shop in question was constructed in the year before 1994. Further, the defendant was tenant in the shop from 1998. No specific stand has been taken by Raminder Kaur about the exact year in which the construction was carried out by the plaintiff. Only vague stand has been taken that it was done in the year before 1994. Moreover, the defendant did not take any such plea when he filed the first appeal before the learned lower appellate Court. He seems to have become wiser after the decision by the learned Courts below so as to create some sort of evidence for showing the construction of the shop more than 10 years before the filing of the suit. Under these circumstances, the aforementioned application filed by the defendant is without any merit, and, therefore, dismissed. Learned counsel for the appellant also submitted that the notice said to have been issued by the plaintiff-respondent under Section 106 of the Transfer of Property Act was never received and, hence, there was no question of termination of the tenancy. While appearing as DW1, the defendant admitted receipt of notice by him. He also admitted the fact that the address given on notice Ex.P1 was his correct postal address. In such a situation, it cannot be said that there was no valid termination of tenancy. No other point has been urged by learned counsel for the appellant. R.S.A. No. 3990 of 2009 (O&M) -4- The concurrent findings of facts arrived at by the learned Courts below are based on correct appreciation of the material evidence brought on the record. These findings are immune from challenge in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as framed by the learned counsel for the appellant, do not arise for determination. In view of the above, there is no merit in the appeal, which is, therefore, dismissed. ( T.P.S.MANN ) November 05, 2009 JUDGE satish