RSA No.3130 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3130 of 2011 (O&M) Date of Decision: 1 - 8 - 2011 Jaspal Kaur and others ....Appellants v. Joginder Kaur and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Baljinder Singh Sra, Advocate for the appellants. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.8612-C of 2011 For the reasons stated in the application, delay of 44 days in refiling the appeal is condoned. C.M. stands disposed of. In CM No.8613-C of 2011 C.M. is allowed. Exemption is granted as prayed for. RSA No.3130 of 2011 (O&M) The present Regular Second Appeal has been filed by the defendants to the suit. Gurdip Singh, husband of defendant-appellant No.1 and father of other defendant-appellants was inducted as a tenant by the plaintiff-respondents in the demised shop w.e.f. 17.2.1998 at a monthly rent RSA No.3130 of 2011 (O&M) [2] of Rs.1,000/-. As per plaintiff-respondent-landlords Rs.25,000/- was paid as advance rent. A rent note to this effect was executed between the parties and vacant possession of the shop was to be handed over to the plaintiff- respondent-landlords after a period of five years from the commencement of the tenancy. Another grievance raised was that the rent was not paid w.e.f. February, 2003. It was further pleaded in the suit that Jaspal Kaur defendant-appellant No.1 had earlier filed a suit for permanent injunction against the plaintiff-respondents that she should not be dispossessed from the demised shop forcibly. Plaintiff-respondents had issued a legal notice dated 16.4.2005 under Section 106 of the Transfer of Property Act, 1882 (hereinafter to be referred as, `the Act'). The legal notice was sent through registered post. In the legal notice 15 days time was given to the defendant- appellants to hand over vacant possession of the demised shop. By way of notice, the tenancy was also terminated. Thereafter, the suit was filed seeking a decree of possession and recovery of Rs.26,000/- along with interest at the rate of 12% per annum. Upon notice, defendants appeared, raised preliminary objections regarding locus standi; suit being bad for mis-joinder and non- joinder of necessary parties and it was also averred that the plaintiff- respondents are estopped from filing the suit. However, plaintiff- respondents' plea that Gurpreet Singh – defendant No.4 was a minor was admitted. The tenancy and rate of rent was not denied. It was further averred that a compromise was arrived at between the parties on 1.1.2000, whereby Gurdip Singh was to pay rent on 1st day of every month. Furthermore, he had agreed not to sublet the shop and the plaintiff- respondents had to deduct Rs.500/- p.m. out of the advance of Rs.25,000/-. RSA No.3130 of 2011 (O&M) [3] A grievance was also made by the defendant-appellant-tenants that the shutter to the shop was not installed. After completion of the pleadings, the trial Court formulated the following issues:- 1. Whether plaintiff served defendants with notice u/s 106 of T.P.Act? OPP 2. Whether plaintiff is entitled to possession of suit property by way of ejectment of the defendants from there? OPP 3. Whether plaintiff is entitled to recovery of amount as prayed for in the plaint? OPD 4. Whether plaintiff has no locus standi and cause of action to file the present suit? OPD 5. Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Whether suit is not maintainable? OPD 7. Whether plaintiff has suppressed the material facts from the court? OPD 8. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9 Relief. Issue No.1 was decided in favour of the plaintiffs and against the defendants. The trial Court held that legal notice Ex.P7 was served upon the defendant-appellant-tenants under Section 106 of the Act. The trial Court also relied upon postal receipts Exs.P3 to P6. The Court further held that since the shop in dispute was not situated in the municipal area, as such, the provisions of East Punjab Urban Rent Restriction Act, 1949 were not attracted. Issue No.2 was also decided in favour of the plaintiffs and against the defendants and it was held that the plaintiffs were entitled to possession of the suit property. The Court further ordered recovery of Rs.26,000/- under issue No.3. Issues No.4, 5 and 6 were also decided in RSA No.3130 of 2011 (O&M) [4] favour of the plaintiffs. Issue No.7 was decided against the defendants and in favour of the plaintiffs. Under issue No.8, the Court held that the court fee has been properly affixed and decided the same in favour of the plaintiffs and against the defendants. Thereafter, the trial Court decreed the suit with costs and directed the defendants to hand over vacant possession of the suit property within two months from the date of decree and further a decree for recovery of Rs.26,000/- was also passed in favour of the plaintiffs and against the defendants, along with interest at the rate of 6% per annum from the date of filing of the suit till realization of the amount. Aggrieved against the same, the defendant-appellant-tenants filed an appeal. The lower Appellate Court affirmed the findings of the trial Court. Mr.Baljinder Singh Sra, learned counsel appearing for the defendant-appellants has assailed the concurrent findings of fact given by both the Courts below on the ground that the defendant-appellants were paying the rent and the same was remitted through money orders which was not accepted by the plaintiff-respondents. Counsel in support of this argument has relied upon the testimony of DW2 Joga Singh, an official of the Post Office. In the present case, it is admitted that the provisions of East Punjab Urban Rent Restriction Act, 1949 are not applicable. Therefore, the tenancy was rightly terminated by issuing notice under Section 106 of the Act. Both the Courts below after appreciating the evidence has held that there was proper service of notice upon the defendant-appellant-tenants. The trial Court held that the defendant-appellants had denied service of the notice but at the same time took a stand that contents of the notice are not RSA No.3130 of 2011 (O&M) [5] true. This Court need not to go into this controversy, as both the Courts below placed reliance upon the postal receipts Exs.P3 to P6 to come to a conclusion that proper service was effected upon the defendant-appellant- tenants. Once the core issue, regarding receipt of notice is un-assailable, no infirmity can be found with the concurrent findings of fact returned by both the Courts below. No question of law, much less the substantial one arises for consideration of this Court. Hence, no interference is warranted and the present appeal is dismissed in limine. ( KANWALJIT SINGH AHLUWALIA ) August 1, 2011. JUDGE RC