Regular Second Appeal No. 166 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 166 of 2009 Date of decision : October 07, 2010 Sohan Lal ....Appellant versus State of Punjab and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. JR Mittal, Senior Advocate with Mr. Lalit Sharma, Advocate and Mr. Tarun Jindal, Advocate, for the appellant Mr. Vivek Chauhan, AAG, Punjab for the respondents L.N. Mittal, J. (Oral) Plaintiff Sohan Lal Aggarwal has filed the instant second appeal. Appellant filed suit against defendant-respondents i.e. State of Punjab and General Manager, District Industries Centre. It is undisputed that Industrial Shed No. B-1, Industrial Area, Ferozepur City was allotted by defendant-respondents to plaintiff-appellant vide letter dated 22.6.1972 on hire purchase basis. Agreement dated 31.3.1975 was executed between the parties regarding the same. However, there was dispute between the parties regarding price of the shed and interest thereon. Civil Court vide order Regular Second Appeal No. 166 of 2009 -2- dated 1.4.1977 appointed Arbitrator to settle the dispute. Award dated 2.4.1979 made by the Arbitrator was set aside by the civil court vide order dated 17.2.1986 on objections being filed by the appellant-plaintiff. The court vide same order also directed the Arbitrator to enter upon the dispute again and to make award. However, since no award was made thereafter, the plaintiff filed suit on 13.5.2000. The plaintiff alleged that after calculation, the plaintiff is liable to pay ` 27,383/- as balance price as due on 31.3.2000 and also liable to pay further interest @ 4.50% per annum on basic price of ` 13,457/- to the defendants as balance amount payable to them and thereupon the defendants are liable to execute and get registered necessary conveyance deed of the disputed industrial shed. Declaration and mandatory injunction to this effect was sought. Defendants, inter alia, pleaded that plaintiff himself did not deposit the hire purchase amount of ` 44,064/- which was to be deposited in 15 years. The plaintiff had deposited ` 5114.70 only and the plaintiff was liable to pay balance amount of ` 38,950/- and interest upto date. The defendants alleged that if the plaintiff paid the said amount, conveyance deed can be executed in favour of the plaintiff in respect of the disputed property. On account of plaintiff's own default, the conveyance deed could not be executed. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ferozepur vide judgment and decree dated 25.2.2008 decreed the plaintiff's suit directing the defendants to execute the conveyance deed of the suit property in favour of the plaintiff after receiving balance sale price of Rs 27,023/- with interest Regular Second Appeal No. 166 of 2009 -3- @ 4½ % with effect from 31.3.1975 till actual payment and also on payment of rent amount of ` 86,407/- calculated upto 31.12.2005 with interest thereon @ 9% per annum since 31.12.2005 till payment. Defendants have also been directed to return pass book of the plaintiff after receiving the aforesaid amount. Both the parties preferred first appeals against judgment and decree of the trial court. However, learned Additional District Judge, Ferozepur vide common judgment dated 4.8.2008 dismissed both the appeals. Feeling aggrieved, only plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant states that the plaintiff is aggrieved by judgment and decree of the trial court (as affirmed in first appeal) to the extent of directing the plaintiff to pay rent amount of ` 86,407/- with interest thereon @ 9% per annum with effect from 31.12.2005 and said part of the decree is liable to be set aside while affirming the remaining part of the decree. Learned counsel for the appellant vehemently contended that direction for payment of rent amount of ` 86,407/- with interest thereon as mentioned above has been passed by the courts below without there being any pleading in this behalf. It was contended that even defendants in their written statement had not claimed any such rent amount or interest and therefore, the aforesaid direction of the courts below is patently illegal and perverse and liable to be set aside. Regular Second Appeal No. 166 of 2009 -4- Learned counsel for the respondents could not advance any meaningful argument to controvert the aforesaid contention of learned counsel for the appellant. I have carefully considered the matter. The defendants in their written statement concededly did not plead that plaintiff is also liable to pay rent and interest for the suit property. No issue in this regard was even framed. The plaintiff-appellant got no opportunity to deny his liability regarding the said amount. On the contrary, the defendants in the written statement themselves stated that conveyance deed can be executed in favour of the plaintiff on payment of balance amount of ` 38,950/- (out of total price of ` 44,064/-) plus interest. This plea of the defendants has been accepted by the courts below. It was found that basic price of ` 22,139/- fixed by the defendants for the suit property was correct. Plaintiff's contention that the basic price came to ` 19,978/- was negatived. Total tentative price of the shed fixed at ` 44,064/- by the defendants has also been accepted by the courts below. The plaintiff had deposited ` 17041/- towards the said price. The same was deducted out of the total price and therefore, amount of ` 27,023/- was found as balance amount due and the plaintiff has been held liable to pay the same along with interest thereon @ 4.5% per annum since 31.3.1975, the date of agreement between the parties. This part of the finding of the courts below is not in dispute at the hands of either party. In view thereof, there was no occasion for the courts below to have directed the plaintiff to also pay the alleged rent amount of ` 86,407/- with interest thereon. No such claim was made even by the defendants in the written statement. Even on principles of equity, justice and good Regular Second Appeal No. 166 of 2009 -5- conscience, the plaintiff could not be directed to pay interest on the balance amount of the shed and also rent for the shed. The plaintiff could be held liable only to pay either interest or rent but not both. For the reasons aforesaid, I find that the following substantial question of law arises for determination in the instant second appeal:- “Whether direction of the courts below to the plaintiff to pay ` 86,407/- as rent with interest thereon is perverse and illegal and therefore, unsustainable?” Discussion already made hereinbefore leads to the only conclusion that the aforesaid substantial question of law has to be answered in favour of the plaintiff-appellant and is answered accordingly. No such direction could be issued to the plaintiff-appellant when no such claim was even laid by the defendants in the pleadings. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the courts below are modified and direction to the plaintiff to pay ` 86,407/- as rent with interest thereon @ 9% per annum with effect from 31.12.2005 till payment is set aside while affirming the remaining relief granted by the courts below to the plaintiff-appellant. ( L.N. Mittal ) October 07, 2010 Judge 'dalbir'