IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3719 of 2011 (O&M) Date of decision : 14.09.2011 Food Corporation of India … Appellant Versus M/s K.D.P. Enterprises and others …Respondent CORAM : HON’BLE MR.JUSTICE K.C.PURI Present: Mr.K.K.Gupta, Advocate for the appellant. K.C.Puri, J. This is an appeal directed by defendant-appellant against the judgment and decree dated 31.10.2009 passed by Shri Krishan Kumar, Additional District and Sessions Judge, Ambala vide which the appeal preferred by the defendant-appellant against the judgment and decree dated 11.11.2006 passed by Smt. Ritu Garg (Civil Judge (Sr.Divn.), Ambala was dismissed. Briefly stated that the plaintiffs filed a suit for recovery of Rs.14,20,503.75 paise along with interest at the rate of 12% per annum from the defendant as arrears of rent and mesne profits for use and occupation of their godowns for the period from 01.12.1989 to 18.01.1993 at the rate of 36 paise per sq.feet per month. It is pleaded that plaintiffs are owners of Godowns situated in Patti Jatan, Ambala City, within the municipal limits of Ambala City, having covered area of 57,141 Sq.feets. They claimed rent for 37 months i.e. from 1.12.1989 to 31.12.1992 at the rate of 75 paise per Sq. feet per month and total amount to be recovered from the defendants was Rs.15,85,662.75 paise, but the defendant paid only Rs.6,65,896 leaving behind a balance of Rs.7,36,016.75 RSA No.3719 of 2011 (O&M) paise. The defendants is occupying the godowns as tenants under the plaintiffs at the rate of 75 paise per Sq.feet per month as held by the Rent Controller. They have not paid rent from 1.12.1989 at the rate of 75 paise per Sq. feet per month but has tendered the rent at the rate of 39 paise per Sq. feet per month. On 10.7.1988, the defendant agreed to enhance the rent at the rate of 75 paise per Sq.feet per month. The defendant is still using the premises and has not paid the rent at the said rate. Hence this suit. Defendant filed the written statement taking preliminary objections that the suit is not within limitation; the plaintiff firm is not registered and the suit is bad for want of particulars of the properties. On merits, it is averred that the correct particulars of the property have not been given. The rate of rent is 39 paise per Sq.feet per month, which has also been paid. Prayer has been made for dismissal of the suit. From the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the suit has been filed by duly authorized person? OPP 2. Whether the plaintiffs are entitled to recover the amount in suit as alleged? OPP 3. Whether the plaintiff are entitled to interest, if so at what rate? OPP 4. Whether the suit is within time? OPP 5. Whether the suit is barred u/s 69 of the Indian Partnership Act? OPD. 6. Whether the suit is bad for want of statutory notice? OPD 7. Whether the plaint suffers from contradictions and, if so its effect? OPD 8. Relief. 2 RSA No.3719 of 2011 (O&M) In support of their case, plaintiffs have examined Shri S.A.Khan, IPS, retired as PW1. In rebuttal, Shri M.L.Ahuja, Assistant Manager (Accounts), Food Corporation of India appeared as DW-1. Learned trial court has taken up issues No.1 to 3 together and returned a finding in favour of the plaintiffs. Issues No.4, 5 to 7 were not pressed before the trial court, and as such, they were decided against the defendant. In view of the above such finding, suit of the plaintiffs for recovery of arrears of rent at the rate of 36 paise per Sq.feet per month from the defendant for the period from 1.12.1989 to 18.1.1993 along with pendente-lite and future interest at the rate of 6% per annum from 1.12.1989 till realization, was passed. Feeling dissatisfied with the above said judgment and decree dated 11.11.2006, the defendant filed the first appeal. Shri Krishan Kumar, Additional District Judge, Ambala, after appreciating the evidence, dismissed the appeal preferred by the defendant-appellant. Still dissatisfied with the judgment and decree dated 31.10.2009 and judgment and decree dated 11.11.2006, referred to above, the defendant- appellant has preferred the present regular second appeal. Along with appeal, an application under Section 151 CPC for condonation of delay in refiling the appeal by 470 days’ was also preferred. It is alleged that appeal was filed on 17.2.2010, but the same was returned with certain objections on 21.4.2010. The clerk of the counsel for the appellant placed the said papers in some other brief and those papers remained untraced. It is only a few days back when the date of execution application was informed to the counsel, the factum of non- 3 RSA No.3719 of 2011 (O&M) filing the appeal has been noticed to the learned counsel for the appellant and thereafter, the appeal was re-filed on 13.9.2011. The application is accompanied by an affidavit of Shri K.K.Gupta, Advocate. Otherwise also, there is delay in refiling the appeal and the appeal was filed within the limitation. The reasoning given for delay can be possible. So, in these circumstances, delay of 470 days’ in refiling the appeal stands condoned. The appellant in para No.8 of the grounds of appeal has mentioned that following substantial questions of law have arisen:- (i) Whether a suit by an unregistered firm or its partners or by their GPA holders is barred under Section 69 of the Partnership Act and in view of the settled preposition of law on this point? (ii) Whether in the absence of any evidence with regard to the implementation of increased rate of rent being produced in the present case, the suit can be decreed on the basis of the order of the Rent Controller ejecting the Food Corporation of India on the ground of non-payment of rent? (iii) Whether the claim of the suit amount was barred by limitation and whether the order of the Rent Controller can revive the period of limitation? (iv) Whether the judgment and decree of both the courts below are liable to be set aside being based on no evidence? (v) Whether the GPA Holders have any right to file the suit on behalf of an unregistered firm and its partners? (vi) Whether the plaintiffs were entitled for any interest on the suit amount? (vii) Whether both the courts below were legally required to decide each and every issue framed in the case and in the absence of deciding the same, the judgment and decree of both the courts below are liable to be set aside? Learned counsel for the appellant has submitted that the trial court has not decided the objections under Section 69 of the Partnership Act and has wrongly stated that the said issues not pressed. The suit of the plaintiffs is time barred. The plaintiffs are claiming rent from 1.12.1989 to 18.1.1993 and the 4 RSA No.3719 of 2011 (O&M) suit has been filed only on 11.9.1998. Observation made by both the courts below that after the decision of rent petition, determining the rent, cause of action arisen, is wrong, executed only when rent was due. So the suit of the plaintiffs is time barred. It is further contended that no doubt the letter was issued by the defendant-appellant regarding the rate of rent of 75 paise per Sq.feet per month but that was subject to making repair in the building. There is no evidence on the file that repair in the building has been made. So, the plaintiffs are entitled to enhance the rent. The suit could not be filed by the GPA. The plaintiffs were not entitled to interest. Both the courts below were legally required to decide each and every issue, but the required issues have not been decided. So, the judgment and decree of both the courts below are liable to be set aside. I have carefully considered the above submission made by the learned counsel for the appellant and have gone through the file of the case. It is an admitted case of the parties that the plaintiffs filed the eviction petition on the ground of nonpayment of rent. The amount of rent claimed in that eviction petition was at the rate of 75 paise per Sq.feet per month. It is also not disputed that the defendant-appellant tendered the rent at the rate of 39 paise per Sq.feet per month. The Rent Controller observed that rent was at the rate of 75 paise per Sq.feet per month. It is also not disputed that the said order of the Rent Controller has been upheld by the appellate authority as well as by this Court. The said eviction petition was also filed through GPA and as filed in the present case. From the perusal of the judgment and decree of the trial court, it is revealed that objections under Section 69 of the Partnership Act was not pressed before the trial Court. So, in these circumstances, the defendant- appellant cannot raise objections in the regular second appeal. Regarding the 5 RSA No.3719 of 2011 (O&M) point of limitation, there is a concurrent finding of fact recorded by the courts below that the suit is within limitation from the date of eviction order passed by the Rent Controller. That finding of fact cannot be challenged in the regular second appeal. Otherwise also, learned counsel for the appellant could not point out how these findings are wrong. The rate of rent is to be determined by the Rent Controller and the Rent Controller has given a finding that rate of rent is 75 paise Sq.feet per month and that judgment has been upheld by this Court. The appellant is estopped from taking plea that rate of rent is 39 paise per Sq.feet per month and not 75 paise per Sq.feet per month. The rate of rent has been assessed by both the courts below on the basis of order of Rent Controller moreso, the case of the defendant-appellant itself is that rate of rent was enhanced. The submission that necessary repair has not been made, cannot be accepted in view of the finding of fact recorded by both the courts below. There is nothing on the file that judgments of both the courts below, is result of misreading and misinterpreting the evidence. The trial Court has decided all the issues. The first appellate court has also decided the issue regarding which arguments were advanced. The issue not pressed before the first appellate court need not to be decided by it. So, in view of the above discussion, I have no hesitation in holding that no substantial of law has arisen in this appeal. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri) Judge 14.09.2011 sd 6