R.S.A. No. 3595 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3595 of 2008 Date of Decision: 11.08.2009 Ashu Kumar son of Naresh Kumar son of Bhupender Nath, resident of Shri Shyam Medial Hall, Kali Devi Chowk, Hansi, District Hisar. ... Appellant Versus Smt. Narender Kumari age 45 years wife of Jai Gopal resident of Subhash Nagar, District Hisar. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Anurag Jain, Advocate, for the appellant. Mr. Pankaj Midha, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 29.09.07, rendered by the Court of Additional Civil Judge (Senior Division), Hansi, vide which, it decreed the suit of the plaintiff, and R.S.A. No. 3595 of 2008 2 the judgement and decree dated 07.08.08, rendered by the Court of District Judge, Hisar, vide which, it dismissed the appeal. 2. The facts, in brief, are that the plaintiff-respondent claimed herself to be the owner of one shop having house tax unit No. 1115-E/16, as fully detailed in the plaint, within the Municipal limits, Hansi. It was stated that the above shop was constructed in December, 1995, alongwith other properties. It was further stated that, thus, the shop, in question, fell out side the purview of the Rent Act. It was further stated that the defendant- appellant was a continuous defaulter against whom rent @ Rs. 1900/- per month, had been due, since 01.12.2000. He had neither paid nor tendered the same, despite repeated demands. A notice on 19.06.04, terminating the tenancy of the defendant, was issued, and he was called upon to deliver the vacant possession of the shop, in dispute, and pay the arrears of rent. The notice was duly served and reply was filed by the defendant, but even then, neither possession was delivered nor the arrears of rent were paid. It was further stated that after the termination of tenancy, the defendant became trespasser. On the final refusal of the defendant, to vacate the shop, in question, left with no other alternative, a suit for possession and recovery of the arrears of rent, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the Civil Court, had no jurisdiction, to entertain and try the suit. It was further pleaded that the site plan was wrong. It was further pleaded that the suit was not maintainable. It was further pleaded that the suit was barred by time. However, the defendant tendered the rent from 01.12.2000 to 30.11.04 for 48 months, amounting to Rs. 1,44,000/-, R.S.A. No. 3595 of 2008 3 alongwith the statutory interest which came to be Rs. 23,520/- total amounting to Rs. 1,67,520/-, out of which seven months rent was paid twice from 01.12.2000 till 30.06.01 and five months rent, was time barred, which came to be Rs. 36,000/- and the interest thereupon, paid in excess amounted to Rs. 58,850/-. It was further stated that the shop, in dispute, was taken on rent from 01.05.96 to 31.03.97 @ Rs. 1500/- per month, under compelling circumstances which continued upto 30.04.99 and thereafter the plaintiff through her husband started putting pressure upon the defendant, either to vacate the demised shop or to enhance the rent. In the year 1997, a shop owned by Smt. Dropdi the mother-in-law of the plaintiff was rented out to Moman Singh Saini son of Lila Ram @ Rs. 350/- per month, including all taxes. The other shops owned by Smt. Dropadi, were also let out, after creation of tenancy of the shop, in dispute, at a monthly rental ranging between Rs. 350/- to Rs. 450/- approximately. It was further stated that the husband of the plaintiff, as well as the general attorney, started putting pressure, upon the plaintiff, for enhancing the rent, and refused to accept the same. The plaintiff stopped obtaining the rent, as and when tendered by the defendant. It was further stated that, thereafter, the defendant stopped paying the rent, as the husband of the plaintiff started demanding Rs. 4,000/- per month. It was further stated that in the Month of October, 2000, with the intervention of the respectables, the defendant was constrained under compelling circumstances, to enhance the rent, to the double of existing rent @ Rs. 3,000/- per month, and that too, from 01.05.99 to 30.09.2000 for 17 months amounting to Rs. 51,000/-. It was further stated that the plaintiff and her husband were not satisfied with the enhancement of rent and were bent upon harassing the defendant. They received the rent R.S.A. No. 3595 of 2008 4 upto June, 2001, without issuing any receipt, regarding the payment thereof. It was denied that the shop, in dispute, was newly constructed, in the month of December, 1995. It was also denied that the defendant was defaulter, in making payment of rent, from 01.12.2000 till the month of June, 2001. It was also denied that the defendant has been in arrears of rent from 01.12.2000 to 31.07.04. It was further denied that the plaintiff was entitled to rent @ 3,000/- per month, besides interest @ 2% per month. It was further stated that the notice was illegal. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to the possession of the disputed property as alleged? OPP (ii) Whether the plaintiff is entitled to recover the amount of Rs. 1,32,000/- with interest @ 2% per month from the institution of the suit till the realization of the decretal amount and Rs. 6000/- per month as use and occupation charges from 01.08.04 as alleged? OPP (iii) Whether the plaintiff has not come to the Court with clean hands if so its effect? OPD (iv) Whether the notice dated 19.06.04 is against law and facts and illegal as alleged? OPD (v) Whether the Civil Court has no jurisdiction to try and entertain the present suit? OPD (vi) Whether the suit is not maintainable in the present form? OPD (vii) Whether the suit is time barred? OPD (viii) Relief. R.S.A. No. 3595 of 2008 5 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendant/appellant, which was dismissed, by the Court of District Judge, Hisar, vide judgement and decree dated 07.08.08. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law, arise in this appeal, for the determination of this Court:- (i) Whether the Courts below recorded perverse findings, on misreading and misappreciation of evidence, that the shop, in question, was a newly constructed in December 1995, and, as such, the Rent Act, was not applicable to the same? (ii) Whether the Courts below recorded perverse findings on account of misreading and misappreciation of evidence that the tenancy was terminated, by issuing a legal and valid notice? 10. The Counsel for the appellant, submitted that the Courts below, recorded perverse findings, in holding that the shop was constructed in December, 1995, and, as such, Rent Act, was not applicable. He further submitted that sufficient evidence, was produced, on record, to prove that the shop was in existence, before that date, but the same was not properly read and duly appreciated by the Courts below, resulting into recording of perverse findings. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. R.S.A. No. 3595 of 2008 6 11. On the other hand, the Counsel for the respondent, submitted that the Courts below, did not record perverse findings, on account of misreading and misappreciation of evidence. He further submitted that, on the other hand, the Courts below, recorded the correct findings, on proper reading and due appreciation of the evidence. He further submitted that the judgements and decrees, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, was very clear, that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The main question, that fell for the decision, before the Courts below, was as to when the shop, in question, was constructed. Admittedly, Deva Ram and Jai Gopal, suffered decree exhibit P14, in favour of Narender Kumari plaintiff/respondent, in respect of the property, in dispute, as a result whereof, she became the owner thereof. In the plaint P17 of that suit, the R.S.A. No. 3595 of 2008 7 nature of the property was mentioned as house. However, D9, site plan attached with the decree exhibit P14, clearly revealed that the portion, shown in red colour, fell to the share of Narender Kumari, plaintiff, and the portion, shown in green colour, fell to the share of one Dropadi Devi, and some space was also lying vacant, which was in possession of Deva Ram and Jai Gopal, the original owners of the suit property. The aforesaid site plan exhibit D9, did not, in any way, indicate that the property, which fell to the share of Narender Kumari, plaintiff, was constructed. PW8/C, the site plan, was submitted by Narender Kumari, plaintiff, before the Municipal Committee, showing the proposed construction. PW8/D, is the site plan, which was sanctioned on 22.05.95, by the Municipal Committee. It means that after sanctioning the plan PW8/D on 22.05.95, that the plaintiff could raise construction. Before sanction of the plan, she could not raise construction, in any manner. Not only this, copies of the first assessment register of the suit property for the year 1996-97, exhibit P23, was tendered into evidence, in which, the shop, in question, was shown in the name of Narender Kumari, plaintiff. No doubt, no completion certificate, regarding the construction, was issued, at the time of filing the suit, by the Municipal Committee, in favour of Narender Kumari. The mere fact that no completion certificate was issued or produced, did not mean that the building was not constructed in December 1995. Jai Gopal, PW11, attorney of the plaintiff stated that the shop was constructed in December, 1995. In the absence of issuance or production of completion certificate, Ex. P-23, copy of the first assessment for the year 1996-97 of house tax of the property, in dispute, was sufficient to prove, when the property was constructed. In Smt. Sudha Rani Garg, Vs. Jagdish Kumar (Deceased), 2005(1) HRR, 139 (SC), the R.S.A. No. 3595 of 2008 8 first assessment, was made on 01.04.83, and the suit for eviction was filed on 21.06.92. Under these circumstances, the Apex Court, held that the building was rightly exempted from the application of Rent Act, the same being a newly constructed building. No doubt, an argument, was advanced by the Counsel for the appellant, that site plans PW8/C and PW8/D were forged and fabricated documents. However, this argument, was on the face of it appeared to be ludicrous. These site plans were submitted by the plaintiff before the Municipal Committee. The Municipal Committee, then sanctioned the site plan PW8/D, for the construction of the building by the plaintiff. PW8/C and PW8/D, plans were proved by Ram Chander (PW8), an official of the Municipal Committee. Presumption of correctness is attached to these documents, as the same were prepared /sanctioned by the officials of the Municipal Committee, in the discharge of their official duties. Similar principle of law, was laid down in Rajinder Vs. Gurmail Singh, 2003(2), All India Land Laws Reporter, 318. The bald statement of Ashok Kumar, defendant, to the effect that the house was already in existence and the shop was constructed after opening the gates etc. towards the main road, much prior to 22.05.95, in the face of the aforesaid ocular and documentary evidence produced by the plaintiff, paled into insignificance. The Courts below, were, thus, right in holding that the shop, in question, was constructed within 10 years preceding 03.08.04, when the suit was filed, and,as such, was exempted from the purview of Rent Act. 13. The next question, that fell for consideration was, as to whether, the tenancy was rightly terminated. Notice P10 dated 19.06.04, through Counsel, regarding the termination of tenancy, was sent to the defendant. The same was served upon him and reply P11 dated 24.07.04, R.S.A. No. 3595 of 2008 9 was sent by his Counsel. The notice exhibit P10 dated 19.06.04, was rightly held to be perfectly legal by the Courts below. The Courts below, thus, were right in coming to the conclusion, that the tenancy was rightly terminated and there was no illegality in the notice dated 19.06.04. 14. The next question that fell for determination was, as to whether, the suit was barred by limitation, as the plaintiff claimed rent, for a period of 48 months. The trial Court, held that the rent for a period of three years could only be claimed, as beyond that period, the claim could be said to be barred by limitation. At the same time, the trial Court, in para No. 17 of its judgement held that since the rent was due to the plaintiff, against the defendant from 01.12.2000 to 30.11.04, and the same was tendered by him (defendant), when he put in appearance in the Court, the same could not be recovered back by him, from the plaintiff. Had the defendant not tendered the rent from 01.12.2000 to 30.11.04, i.e. for 48 months, claimed by the plaintiff, certainly it would have been said, that claim of the plaintiff only for a period of three years, immediately preceding the filing of the suit, was within limitation. In view of the tender of rent for the period, for which, the same was claimed by the plaintiff, in the Court, voluntarily, by the defendant, this issue became redundant. 15. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of the evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the defendant/appellant, being without merit, must fail, and the same stands rejected. The substantial questions of R.S.A. No. 3595 of 2008 10 law, depicted above, are, answered against the appellant. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 11.08.2009 (SHAM SUNDER) Amodh JUDGE