IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 82 of 2008 Date of decision : January 16, 2008 Hari Kishan ....... Appellant Versus Lachhman Dass etc. ...... Respondents Present: Mr. R.S. Mittal, Sr. Advocate for Mr. Sudhir Mittal, Advocate for the appellant. S.S. SARON, J. (ORAL) This Second Appeal has been filed by the defendant-appellant against the judgment and decree dated 12.11.2007 passed by the learned Additional District Judge, Jagadhri whereby the appeal filed by the defendant- appellant against the judgment and decree dated 21.12.2005 passed by the learned Civil Judge (Jr. Division) Jagadhri has been dismissed. The plaintiffs-respondents filed a suit for possession of the demised shop inter alia alleging that the same was taken on a monthly rent by the defendant from plaintiff No.1 in pursuance of rent note dated 04.07.1991. The shop in dispute was constructed by the plaintiffs in June 1991. The electric connection was put thereafter. In terms of the provisions of Section 1 (3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 ( 'Act' – for short), the provisions of the Act are inapplicable to any building the construction of which is completed on or after the commencement of the Act for a period of 10 years from the date of its completion. The building having been constructed in the month of June 1991, the plaintiffs filed a suit on R.S.A. No. 82 of 2008 [2] 01.05.2001 seeking eviction of the defendant-appellant. A notice dated 09.04.2001 was served by the plaintiffs on the defendant terminating his tenancy. The said notice was received by the defendant on 12.04.2001. The defendant did not pay the rent. The suit that was filed by the plaintiff was decreed by both the Courts below. Mr. R.S. Mittal, Sr. Advocate appearing with Mr. Sudhir Mittal, Advocate for the defendant-appellant has contended that in fact the plaintiffs had filed an application under the Act on 18.11.2000 for eviction and relisation of arrears of rent. The defendant-appellant was, therefore, made to believe that period of 10 years had elapsed from the date of construction as otherwise the application under the Act would not be maintainable. It is submitted that the provisions of the Act are in fact applicable and the suit as filed by the plaintiffs was not maintainable. Besides, it is submitted that in any case, the plaintiffs- respondents are estopped by their act and conduct from filing the suit in view of the provisions of Section 115 of the Evidence Act. It is also submitted that the building was constructed earlier to June 1991 which is evident from the cross-examination of Lachhman Dass PW-3 and also from the fact that son of the plaintiff was running Durga Tent House in partnership with one Rakesh Kumar and telephone connection for Durga Tent House was obtained on 16.04.1988. A reference has also been made to the Assessment Register of Municipal Council, Yamunagar for the year 1992-1993 to contend that in fact there are four shops being run which include Durga Tent House and Yamuna Bottles. Therefore, the telephone connection having been installed in 1988 would show that the shop was constructed earlier to 1991. I have given my thoughtful consideration to the contentions of the learned Sr. counsel for the appellant and also perused the judgments of both the Courts below. It may be noticed that the learned Additional District Judge, R.S.A. No. 82 of 2008 [3] Jagadhri has by a detailed order considered all the facts and circumstances of the case and come to the conclusion that the judgment and decree passed by the trial Court are liable to be upheld. The fact that earlier the plaintiffs had filed a suit under the provisions of the Act would not operate as an estoppel against law to seek eviction of the defendant-appellant in accordance with law by filing a suit for possession. It is well settled that estoppel does not operate against law. This aspect has been duly considered by the learned Additional District Judge, Jagadhri. The question whether shop was constructed in 1991 or earlier is a pure finding of fact and both the Courts below have concurrently found that the shop was constructed in 1991. It was given on rent to the defendant-appellant in pursuance of rent note dated 04.07.1991 (Ex. P-1). Besides, it was also assessed to tax for the first time in 1992-93. These findings of facts having been recorded by the Courts below would not warrant any interference especially when no questions of law much less substantial questions of law are shown to be involved. In the circumstances, there is no merit in the appeal. Learned Sr. counsel for the appellant then submits that the appellant may be granted time to vacate the demised premises as he is a poor person and working manually in a printing press in the demised shop. This aspect would definitely require due consideration and ends of justice would be met if time is granted upto 31.10.2008 to the defendant-appellant to vacate the demised premises subject to his filing necessary undertaking before the Executing Court that he shall vacate the demised premises by 31.10.2008 and pay the arrears of rent if any due and continue to pay the same till 31.10.2008. Consequently, the Regular Second Appeal is dismissed. However, its execution shall be kept in abeyance till 31.10.2008 subject to the condition that the defendant-appellant furnishes necessary undertaking before the R.S.A. No. 82 of 2008 [4] Executing Court that he shall vacate the demised premises by 31.10.2008 and that he shall not create any third party rights. Besides, he shall pay the arrears of rent that may be due and continue to pay the rent till 31.10.2008. (S.S. SARON) January 16, 2008 JUDGE amit