RSA No.2075 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2075 of 2005 Date of decision 09 .07.2010. Sham Sunder Goel and others ...... Appellants. versus S.K.Bhatnagar ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Arvind Singh, Advocate for the appellants. Mr. Deepak Sharma, Advocate for the respondent. K.C.PURI, J. This is a regular second appeal directed by plaintiffs-appellants against the judgment dated 28.2.2005 passed by Shri Sanjeev Kumar, Additional District Judge, Ambala vide which the appeal preferred by the present plaintiff-appellant against the judgment dated 31.7.2003 passed by Shri Y.S.Rathore, Civil Judge (Senior Division), Ambala, who dismissed the suit of the plaintiffs for possession by way of ejectment whereas partly decreed with costs for recovery of Rs.12,000/- along with 9% interest, was dismissed. Shorn off unnecessary details, the case of the plaintiff as set RSA No.2075 of 2005 2 forth in the plaint is that the plaintiffs-appellants are owners-cum-landlords of the premises in dispute in which defendant is tenant under them in respect of one room on the ground floor being part of the premises at the rate Rs.750/- per month. Earlier Bachna Ram son of Nathu was the owner of the suit property and defendant took the shop in question on rent from Bachna Ram vide rent note dated 16.2.1991 and he also executed a Parcha Yadast in favour of Raj Kumar son of Bachna Ram in the presence of witnesses. The said Bachna Ram initially mortgaged some part of the premises with plaintiff No.1 and thereafter remaining portion was mortgaged with both the plaintiffs vide two registered mortgage deeds dated 5.8.1992 and 24.8.1992 respectively. Thereafter, Bachna Ram sold the entire property of the plaintiffs vide sale deed dated 21.12.1992 and as such, defendant became the tenant under the plaintiff and relationship of landlord and tenant came into existence between the parties. Premises in question was constructed in the year 1989 and as such provisions of Haryana Urban (Control of Rent & Eviction) Act 1973 (hereinafter referred to as Act) are not applicable to the present case. 2. It is further submitted that defendant used to pay rent to the plaintiff at the rate of Rs.750/- per month but stopped making payment of rent w.e.f. 1.5.1993 and rent has not been paid till date. Plaintiff terminated the tenancy of the defendant by serving a notice dated 25.7.94 under Section 106 of the T.P. Act, which was sent through registered post as well as UPC. Notice has been duly served upon the defendant, who has replied the same vide Reply dated 27.8.94. Since tenancy of the defendant has been validly terminated, plaintiff is entitled to recover a sum of Rs.12000/- on account of RSA No.2075 of 2005 3 rent/mesne profits for the period of 1.5.93 to 31.8.94 alongwith interest from the defendant. The rent prevailing in the locality having similar accommodation and similar facilities is more than Rs.1000/- per month but the plaintiffs are confining their claim to Rs.1000/- per month w.e.f. 1.9.94 and plaintiff is also entitled to recover mesne profits at the rate of Rs.1000/- per month w.e.f. 1.9.94 alongwith interest. Plaintiffs requested the defendant several times to pay the arrears and to vacate the shop but of no help. On notice of this suit, defendant in his written statement has challenged the suit preliminary on the grounds of maintainability, jurisdiction, locus standi and cause of action and it is submitted that no relationship of landlord and tenant exists between the parties and Bachna Ram, the owner and landlord never conveyed about the transfer of the shop to the defendant. It is further submitted that building was constructed in the year 1969 as apparent in the wording of Rent Note. On merits, it is submitted that plaintiffs are not owner of the suit property. It is further submitted that defendant is tenant under Bachna Ram and Raj Kumar, his son and tenancy had created in favour of Raj Kumar vide rent note dated 16.2.1991. It has been denied that shop is a part of House No.1125.B-9. It is also submitted that Bachna Ram and his son Raj Kumar are still claiming ownership rights when the defendant contacted them after the receipt of the notice as well as of the suit. Execution of mortgaged deed in favour of the plaintiffs by Bachna Ram as well as sale deed have been denied. It has been denied that property was constructed in the year 1989 and rather it is submitted that the same was constructed in the year 1969 and as such, RSA No.2075 of 2005 4 provisions of Rent Act are applicable in the present case. It is further submitted that the defendant has paid rent to Raj Kumar against receipts upto 31.7.94 plaintiffs have no right to terminate the tenancy of the defendant. Dismissal of the suit has been prayed for. From the pleadings of the parties, following issues were framed:- 1.Whether the defendant is liable to be evicted on the ground of arrears of rent w.e.f. 1.5.93 till date?OPP. 2. Whether the tenancy of the defendant has been legally terminated under 106 of the T.P. Act?OPP. 3. Whether the plaintiffs are entitled for mesne profit @ Rs.1000/- p.m. w.e.f. 1.9.94 and future interest?OPP. 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD. 5. Whether this court has no jurisdiction to try and entertain the present suit?OPD. 6. Whether the present suit of the plaintiff is false and frivolous and liable to be rejected with special costs?OPD. 7. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence and after hearing the learned counsel for the parties, the trial Court dismissed the suit of the plaintiffs for possession by way of ejectment whereas partly decreed with costs for recovery of Rs.12,000/- along with 9% interest, per annum till realisation. Aggrieved by the said judgment and decree passed by the learned trial court, the plaintiffs have filed the appeal before learned First Appellate Court. The said appeal was dismissed by Shri Sanjeev Kumar, RSA No.2075 of 2005 5 learned District Judge, Ambala vide judgment dated 28.2.2005. Still feeling dis-satisfied with the aforesaid judgments of the Courts below, the present regular second appeal has been preferred by the plaintiffs/appellants. Learned counsel for the appellants has submitted that vide order dated 29.6.2010, the defence of the respondents has been ordered to be struck off under Order 15 Rule 5 of the Code of Civil Procedure (in short – the CPC). The case of the plaintiff set forth in the plaint is that the demised shops were constructed in the year 1989. The Municipal Committee has issued notice to the original owner regarding unauthorized construction of shop in the year 1990. The original owner was also fined and Rs.1500/- was paid by him as fine. Both the Courts below have relied upon the documents Ex.D-1 to D-8 to conclude that plaintiff has failed to prove that construction was raised in the year 1990. Much importance has been given by both the Courts below to the assessment register prior to 1989. Both the Courts below have lost sight of the fact that in the previous record only house has been mentioned, whereas in the later record, after 1990, shops have been shown. Both the Courts below have given much importance to the fact that mason, who has constructed the shops has not been examined and as such the plaintiff has failed to prove the fact that shops were constructed in the year 1990. In this context, it is submitted that these shops were constructed by the vendor of the appellant. The shop was let out to the defendant/respondent in the year 1991. The same were purchased by the plaintiff in the year 1992. So, in these circumstances, the appellant could not produce the mason as it was not in his knowledge, who RSA No.2075 of 2005 6 was the mason. Both the Courts below have returned a finding that defendant in rent note Ex.D1/A has made material alteration by inserting “shop constructed in the year 1969”. The carbon copy of Ex.D1/A has been produced on the file in which it has not been mentioned that shop was constructed in the year 1969. In order to avoid the eviction, the addition was made in Ex.D1/A. Person who can commit forgery regarding the year of construction of shop should not have been relied upon by both the Courts below. Learned counsel for the appellant has submitted that following substantial question of law have arisen :- (a) that both the Courts below have misinterpreted and misread the evidence in respect of construction of the demised shop and that it is proved that shop in question was constructed in the year 1989 i.e. within five years and as such the Rent Act of Haryana is not applicable. The first question which arises out; what is the effect of order dated 29.6.2010 passed by this Court under Order 15 Rule 5 CPC striking off the defence of defendant/respondents. 1.Whether the evidence already produced on the file by the parties has to be looked into or not? Order 15 Rule 5 CPC has been added in the Code of Civil Procedure for the States of Punjab, Haryana and Union Territory, in which it is mentioned that in case the tenant does not deposit the agreed rent, his defence has to be struck off. So, I am of the considered view that so far as evidence already led on the file is concerned that has to be looked into for deciding the second appeal. The underlying idea for incorporating Order RSA No.2075 of 2005 7 15 Rule 5 CPC in respect of States of Punjab, Haryana and Union Territory, is to secure the rent of the landlord. Had the defence of defendant been struck off at the initial stage i.e. without leading evidence on the date of first hearing, the matter would have been different. Since in this case both the Courts have decided the right of the parties and as such the evidence already led has to be looked into. The effect of striking the defence in the second appeal will be that he would be barred from leading further evidence in the second appeal. So, in view of the above discussion, the evidence already on the file has to be looked into. The other question arises for consideration is whether the concurrent finding of both the Courts below to the effect that plaintiff has failed to prove that shop was constructed in the year 1989 called for any interference and that both the Courts have misinterpreted and misread the evidence on the file on this issue. The answer to that question goes in negative. Learned counsel for the appellant could not point out as to how both the Courts below have misinterpreted and misread the evidence on the file regarding the issue of construction of shops in the year 1989. Mere fact that notice for construction has been issued in the year 1990 does not prove the fact that shop was constructed in the year 1989. No doubt, both the Courts below have returned a finding that defendant has made addition Ex.D1/A by inserting the words “shop was constructed in 1969”. But, however, the fact remains that the onus is on the plaintiff to prove the fact that shop was constructed in the year 1989. Mason has not been produced RSA No.2075 of 2005 8 to prove that shop was constructed in the year 1989. The existence of property of vendor since 1974 is admitted from the documents Ex.D-1 to Ex.D-4. Otherwise also, this Court can not interfere in the concurrent finding of fact returned by both the Courts below unless the appellant show that the said findings are the result of misinterpretation and misreading the evidence. No specific instances have been given on the file during the course of arguments by the counsel as to how the sad findings are the result of misinterpretation and misreading the evidence on the record. However, it has come on the record that the defendant/respondent has not paid the rent since 1.5.1993. The suit of the plaintiff for recovery of rent from 1.5.1993 to 31.8.1994 has been decreed by both the Courts below. No rent after 1.9.1994 is stated to has been paid by the defendant. The appellant shall have the right to recover the same in accordance with law. In view of the above discussion, the appeal is without any merit and the same stands dismissed. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs. A copy of this judgment be sent to the trial Court for strict compliance. July 09 , 2010 (K.C. PURI) sv JUDGE