RSA No.3143 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3143 of 2009(O&M) Date of decision: 15.1.2010 Jagtar Singh ......Appellant(s) Versus Ajit Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Sandhir, Advocate for the appellant. Mr. Amit Rawal, Advocate for the respondents. Rakesh Kumar Garg, J.(Oral) CM No.9547-C of 2009 After hearing learned counsel for the parties, delay of 34 days in fling this appeal is condoned. CM stands disposed of. CM No.9548-C of 2009 Application is allowed subject to all just exceptions and delay of 21 days in making good the deficiency in Court fee is condoned. CM No.9549-C of 2009 CM is allowed subject to all just exceptions. RSA No.3143 of 2009(O&M) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondents for possession of the shop in dispute and for recovery of arrears of rent, has been decreed with costs. Briefly stated, as per the averments made in the suit, the shop in question was rented out to the appellant on 1.5.2003 coupled with delivery of possession, on a monthly rent of Rs.800/- payable in advance, by way of oral tenancy. It is the further case of the plaintiff-respondents that rent upto RSA No.3143 of 2009(O&M) 2 31.1.2004 was paid and all the payments of rent were received against receipt and there was no oral payment. The shop in dispute was in highly dilapidated condition and the respondents required to reconstruct the same and they asked the defendant-appellant to hand over the vacant possession, but he filed suit for permanent injunction restraining the respondents from dispossessing him from the peaceful possession of the demised shop. In that suit for permanent injunction, it was also averred by the respondents that the appellant had failed to pay arrears of rent w.e.f. 1.2.2004 and thus, he had not proved to be a good tenant. Since the shop in dispute was situated in village Rattan and Adda Jodhan and Post Office Mansuran Tehsil and District Ludhiana, therefore, the provisions of East Punjab Urban Rent Restriction Act, 1949 were not applicable. The appellant was occupying the shop in dispute as a statutory tent and therefore, no notice under Section 106 of the Transfer of Property Act was required to be served upon him, but the respondents yet got issued a notice dated 7.3.2005 which was served on the defendant-appellant on 11.3.2005 and 15 days' notice was given to the defendant-appellant to vacate the demised premises. Despite the receipt of notice, the appellant failed to deliver the vacant possession and also did not pay the arrears of rent w.e.f. 1.2.2004. The appellant continued to be in the unauthorized possession of the shop without paying the rent. Hence, the present suit was filed. Upon notice, the appellant appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the calculations made in the plaint are false and baseless and the appellant was not liable to pay any amount. It was further submitted that the appellant had already paid the rent till December, 2004 and was further ready to pay the rent at the rate of Rs.450/- w.e.f 1.1.2005. On merits, the defendant-appellant denied all other allegations made in the RSA No.3143 of 2009(O&M) 3 plaint and prayed for dismissal of the suit. On appreciation of evidence and after hearing both the counsel for the parties, the suit of the plaintiff-respondents was decreed with costs. Feeling aggrieved, the appellant filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 25.2.2009. While dismissing the appeal, the Lower Appellate Court observed as under: “I have heard the Ld. Counsel for the parties and I am of the considered opinion that there is no ground of substance in the appeal and it deserves to be dismissed. The appellant has miserably failed to show that the rate of rent including the water charges were settled at Rs.450/- per month. He has not brought any receipt or any electric bill to prove that he had been paying the electricity bills. The averment that Rs.7500/- was paid as advance money is also not supported by any document and therefore, it is not acceptable. DW Expert Ravi Kumar examined by the appellant to rebut the case of the respondent has admitted in his cross examination that he inspected the shop in the absence of respondents. The expert evidence is procured by the appellant and has given a report favouring him. As regards the notice U/s 106 of the Act it was duly served upon the appellant and if the appellant had any grievance against the non-framing of additional issue he could have challenged the order vide which the issues were framed, before competent court. Having not done so, he cannot be allowed to agitate the issue at the RSA No.3143 of 2009(O&M) 4 appellate stage. Furthermore, the appellant could not deny his signatures on the postal acknowledgment sent alongwith the notice. Respondent No.1 was cross examined as PW1 but no suggestion was put to him regarding not sending the notice, whereas in the cross examination DW1 Jagtar Singh has admitted his signatures on the postal acknowledgment i.e. Ex.P6. He has also admitted that address mentioned in the copy of notice to be correct which proves that he was duly served with the notice U/s 106 of the Act. Similarly for arrears of rent, diary notebook maintained by the respondents in the normal course of business shows that the rate of rent was Rs.800/- per month. No suggestion was put to PW1 regarding the rate of rent to be Rs.450/- per month or that the rent stood paid uptil December 2004. Ld. Counsel for the appellant relied upon the judgments Ramji Dass Nirmoni Vs. Gurbux Singh 1998(2) R.C.R.(Rent) 129, Tarsem Lal Vs. Krishan Chander 2005(1) P.L.R. 870, Jita Ram and anr. Vs. Sham Lal and anr. 1993(1) P.L.R 291, Daulat Ram Vs. Pt. Laxmi Narain 2003(3) PLR 495 and Roshan Lal Vs. Krishan Chand and Bhagwan Dass 1993(2) RCR (Rent) 41, and argued that the tenant could not be rejected on the ground that the building had become unsafe and unfit for human habitation in the absence of any evidence. He argued that the expert evidence led by the appellant i.e. DW2 had proved that the building was not in a dilapidated condition. It is pertinent to mention here that the judgments cited by the RSA No.3143 of 2009(O&M) 5 Ld. Counsel for the appellant apply to East Punjab Urban Rent Restriction Act, 1949 wherein the building which has become unsafe and unfit for human habitation is valid ground for ejectment, but in the instant case the judgments do not apply as the ejectment is not sought under the East Punjab Urban Rent Restriction Act. Even DW2 Ravi Kumar has admitted that he did not serve any notice upon the respondents before visiting the site. He did not click photograph himself and he did not join the Sarpanch or Numberdar or other respectables or independent person at the site. The report of DW2 does not inspire any confidence. In view of the above discussion, the appeal is dismissed.” Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel appearing on behalf of the appellant has vehemently argued that the Courts below have erred at law while decreeing the suit of the plaintiff-respondents as from the evidence on record produced by the plaintiff-respondents, the ground taken by them to get the shop in dispute vacated i.e the ground of dilapidated condition, has not been proved and therefore, the judgment and decrees of the Courts below are liable to be set aside and suit of the plaintiff-respondents is liable to be dismissed. On the basis of the aforesaid argument, learned counsel for the appellant has argued that the following substantial question of law arises in this appeal:- “Whether the judgment of the Courts below suffers from perversity?” On the other hand, learned counsel appearing on behalf of the RSA No.3143 of 2009(O&M) 6 respondents has vehemently argued that the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff-respondents are entitled to the possession of the property in dispute and no substantial question of law arises in this appeal. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. The title of the plaintiff-respondents over the shop is not disputed. It is again not in dispute that the provisions of Rent Act are not applicable as the property in dispute is situated outside the urban area. It was a simple suit for possession on the basis of title. The tenancy was duly terminated by serving a notice dated 7.3.2005 on the appellant. Thus, the argument raised by the learned counsel for the appellant that the plaintiff-respondents have failed to prove the ground of dilapidated condition of the property in dispute, is of no consequence. The appellant also failed to prove the rate of rent @ Rs.450/- per month as alleged by him. No fault can be found in the findings of fact recorded by the Courts below. Thus, no substantial question of law arises. No other point has been urged. Thus, I find no merit in this appeal. Dismissed. January 15, 2010 (RAKESH KUMAR GARG) ps JUDGE