R.S.A. No. 2553 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 7186-C of 2007 and R.S.A. No. 2553 of 2007 Date of Decision: 10.9.2008 Parkash Singh ...Appellant. Versus Parsini Devi ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. R.S. Sihota, Senior Advocate with Mr. H.P.S. Ishar, Advocate for the appellant. Mr. Sanjay Gupta, Advocate for the caveator-respondent. AJAY KUMAR MITTAL, J. This regular second appeal by the defendant is directed against the judgment and decree dated 28.2.2007 passed by the Additional District Judge, Rupnagar whereby the judgment and decree dated 10.10.2005 passed by the Additional Civil Judge (Senior Division), Kharar decreeing the suit of the plaintiff for possession had been upheld. The facts as narrated in the plaint are that the defendant was inducted as a tenant in House No. HE-123, Phase VII, SAS Nagar, Mohali (hereinafter referred to as the “suit property”) on the basis of the oral tenancy which was followed by delivery of possession of the same. The rate of rent was settled at Rs.1500/- per month and the defendant R.S.A. No. 2553 of 2007 -2- was also to pay the electricity and water charges according to the consumption made by him. It was alleged that initially the defendant had been paying the rent at the agreed rate and the plaintiff had been issuing the receipt but he stopped paying the rent w.e.f. 1.1.2001 and as and when the plaintiff approached the defendant for payment of rent, he kept on seeking time for the same on one pretext or the other. It was further pleaded that when the plaintiff lastly approached the defendant for payment/arrears of rent, the defendant instead of making payment of the same, filed a civil suit for permanent injunction against her. Thereafter, the plaintiff issued a notice dated 1.4.2002 intending to terminate the tenancy of the defendant. The said notice was sent through postal certificate and UPC but the same was returned back with the report that the defendant was not available. According to the plaintiff, despite repeated visits the notice was received undelivered and the same was, thus, deemed to have been served upon the defendant and despite the service of the notice, the defendant had failed to hand over the vacant possession of the suit property and that gave rise to the filing of the suit for possession. In response to the notice of the civil suit having been served, the defendant appeared and filed written statement raising various preliminary objections. It was pleaded that the rate of rent was settled at Rs.500/- per month which the defendant had been paying regularly to the plaintiff but she never issued any receipt thereof. As per the defendant, the rent had been paid upto December 2001 at the rate of Rs.500/- per month and when the plaintiff tried to dispossess the defendant, he filed a suit for permanent injunction. It was further R.S.A. No. 2553 of 2007 -3- pleaded that the defendant approached the plaintiff to take the rent for the remaining period but she refused to receive the same. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. The trial court while returning a finding in favour of the plaintiff came to the conclusion that the notice terminating his tenancy over the suit property was duly served upon the defendant and thereafter he became unauthorized occupant of the same and, therefore, held the plaintiff entitled to the possession of the tenanted premises after ejectment of the defendant. It was also held that the plaintiff was entitled to recover arrears of rent at the rate of Rs.500/- per month along with interest at the rate of 9% per annum for the period from 1.1.2001 to 30.4.2002 (excluding the amount, if any, paid in the court) as well as damages at the rate of Rs.600/- per month along with interest at the rate of 6% per annum from 1.5.2002 till the date of delivery of possession. Accordingly, the suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 10.10.2005. Feeling aggrieved, the defendant filed an appeal and the plaintiff also filed cross-objections before the first appellate court. The first appellate court finding no illegality in the judgment and decree passed by the trial court dismissed the appeal and partly allowed the cross-objections filed by the plaintiff fixing the damages at the rate of Rs.800/- per month vide judgment and decree dated 28.2.2007. Learned counsel for the appellant has submitted that the notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”) was not validly served and by R.S.A. No. 2553 of 2007 -4- placing reliance upon the judgment of this Court in Amrit Lal Sharma v. Narinder Sharotri, 2000 (1) PLR 806 and the Madras High Court in C.M.K.Kamu Mudaliar v. Kanthamani Natarajan and another, 1979 (1) RCR (Rent) 689 has submitted that the inference drawn by the courts below and the findings recorded to the effect that the defendant was duly served, were not correct. He has further submitted that in these facts and circumstances of the case, substantial question of law arises in this appeal. On the other hand, learned counsel for the caveator- respondent canvassed that the Hon'ble Supreme Court in The State of Madhya Pradesh v. Hiralal and others, 1996 (1) ACJ 425 (SC), wherein the respondents had managed to avoid service of summons, the notice in such circumstances was held to be validly served. He, thus, prayed for dismissal of the appeal. I have heard the learned counsel for the parties and perused the record with their assistance. The Apex Court in Hiralal's case (supra) while dealing with a case wherein the service of summons issued to the respondents were tried to be avoided and were returned with the postal remarks “not available in the house”, “house locked” and “shop closed” respectively, held it to be a valid service of summons on the respondents. The courts below have recorded that the notice under Section 106 of the Act was sent under UPC as well as by registered AD post and the same was, therefore, deemed to have been duly served upon the defendant. The judgments cited by the learned counsel for the appellant, in the facts and circumstances of the present case does not advance his case. R.S.A. No. 2553 of 2007 -5- In view of the above, no illegality or perversity could be found in the judgments and decrees of the courts below and the findings recorded being concurrent findings of fact do not call for interference by this Court in the regular second appeal. Finding no merit in this appeal, the same is hereby dismissed. Since the appeal has been dismissed on merits, no separate order is being passed in C.M. No. 7186-C of 2007 for condonation of 32 days' delay in filing the appeal. September 10, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 2553 of 2007 -6- C.M. No. 7185-C of 2007 IN RSA No. 2553 of 2007 Present: Mr. R.S.Sihota, Senior Advocate with Mr. H.P.S. Ishar, Advocate for the appellant. Mr. Sanjay Gupta, Advocate for the caveator-respondent. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 6 days' delay in refiling the appeal. After hearing the learned counsel for the parties and perusing the application, the delay of 6 days in refiling the appeal is condoned. CM stands disposed of accordingly. September 10, 2008 (AJAY KUMAR MITTAL) gbs JUDGE