RSA No.3494 of 2007(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on December 10,2009. Harikesh -- Appellant/Defendant vs. Smt.Narain Devi (Widow) and others --Respondents/plaintiffs CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.C.B.Goel,Advocate, for the appellant. Mr.Rajesh Sethi,Advocate,for the respondents. Rakesh Kumar Jain, J: The defendant is in second appeal against the judgment and decree of the learned First Appellate Court dated 12.9.2007. The plaintiff filed a suit for possession by way of ejectment of the defendant from the shop bearing private No.1 consisting of two portions and two shutters (hereinafter referred as 'the demised premises') and for recovery of the arrears of rent w.e.f. 28.8.2001 till the tenancy was terminated along-with mesne profits @ Rs.4000/- per month from the date of termination of tenancy till the delivery of vacant possession of the the demised premises. The case set up by the plaintiff is that he had let out the demised premises to defendant on rent @ Rs.3000/- per month besides RSA No.3494 of 2007(O&M) 2 house tax and electricity charges vide agreement dated 15.7.1998 for the purpose of running the shop of tea and sweets. The possession was to be delivered on 16.8.1998 but as the white wash and shutter work in the shop had not completed, the possession was delivered on 28.8.1998. The rent was to be enhanced to Rs. 4000/- per month after a lapse of three years and it was orally agreed between the parties that after expiry of every year, rent will be increased to the extent of 10%. The plaintiff also alleged that the defendant had been paying the rent to the tune of Rs.3200/- per month which has been paid up to July,2001 and after expiry of admitted period of three years, the defendant has refused to pay the agreed rent. The tenancy was from month to month starting from 28th of every month and ending with 27th of next month. The tenancy was terminated on 15.1.2002 by way of a notice issued under Section 106 of the Transfer of Property Act,1882 (hereinafter referred to as' the Act'), which was sent both by U.P.C as well as registered post. It is also alleged that construction of the demised premises was completed in the month of July,1998 and as such, it was exempted from the provisions of Haryana Urban (Control of Rent & Eviction) Act,1973. It is further averred that after the termination of tenancy, the defendant is in un- authorised possession of the demised premises and is liable to pay mesne profits @ Rs.4000/- from the date of termination of tenancy till the date of delivery of possession after adjusting the sum of Rs.35,000/- received towards security. The case set up by the defendant is that the demised premises has not been constructed in the year 1998 as alleged, rather there were some minor repair work carried out in the demised premises. The plaintiff had agreed to extend the tenancy up to 2009 RSA No.3494 of 2007(O&M) 3 on payment of Rs.3200/- per month and as such, the rent has been enhanced from Rs.3000/- per month. Since the plaintiff had been accepting the rent @ Rs.3200/- per month without any objection, he is estopped from raising any objection that the rent of the demised premises was agreed to be Rs. 4000/- per month. Receipt of the notice has also been denied. The plaintiff filed the replication. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to take back security of Rs.35,000/- from the defendant ? OPP 2. Whether the plaintiff is entitled for recovery of Rs.24,000/- alongwith house tax and electricity charges ? OPD 3. Whether the plaintiff is entitled for mesne profits during the pendency of suit till the recovery of possession ? OPP 4. If issue Nos. 1 to 3 are proved,whether the plaintiff is entitled for a decree of possession of shop as mentioned in para No.1 of the plaint on the grounds as prayed for ? OPP 5. Whether the suit of the plaintiff is not maintainable? OPD 6. Whether the plaintiff has concealed true and material facts from the Court ? OPD 7.Whether the notice dated 15.1.2002 as mentioned in plaint is illegal,null and void ? OPD 8. Whether the plaintiff was agreed with defendant as tenant uptill the year 2009 on payment of Rs.3200/- per month? OPD RSA No.3494 of 2007(O&M) 4 9. Whether the rate of tenanted shop is excessive rate of rent with compared to other shop ? OPD 10. Whether the plaintiff has no locus standi to file the present suit ? OPD 11. Whether the plaintiff is estopped by his own act and conduct? OPD 12. Relief: On 29.8.2005, Issue No.1 was replaced by following issue:- 1. Whether the plaintiff is liable to adjust the security of Rs.35,000/- in the arrears of rent and mesne profits,as alleged?OPD Both the parties led their respective evidence . The plaintiff examined Joginder Singh, Building Clerk of Municipal Committee, Kaithal as PW-1 , Suresh Chand, Draftsman as PW-2, Prem Parkash Clerk to Sh.K.K. Adhlakha, Advocate as PW-3, Darshan Gulati the witness to the rent agreement as PW-4, Subhash Chand, Document Writer as PW-5, and he himself stepped into the witness box as PW-6. By way of documentary evidence, the plaintiff has placed on the file documents Ex. P-1/Ex.P-3 (proposed site plan for raising a fresh construction of the file in dispute), Ex.P-2 (Sanction letter to raise a fresh construction in accordance with the proposed site plan), Ex.P-4 (Site plan attached with the plaint), Ex.P-5/Ex.P-6 (notice dated 15.1.2002), Ex.P-7 (registered cover vide which the notice was sent to the defendant), Ex. P-8 (acknowledgement receipt), Ex.P-9 (Postal receipt), Ex. P-10 ( U.P.C), (Ex.P11 ( Rent Agreement), Ex.P- 12/ Mark-x (Sale deed dated 4.9.1997 vide which the shop in dispute alongwith other shops have been purchased by the present plaintiff), RSA No.3494 of 2007(O&M) 5 Ex. P-12/A/Mark-Y (site plan attached with (Ex.P-12). Thereafter, learned counsel for the plaintiff has closed his evidence vide his statement recorded separately. On the other hand, the defendant has examined Baljinder Singh, another witness to the rent agreement as DW-1, Satpal Sharma, Neighbour of the shop in dispute as DW-2 and he himself has stepped into the witness box as DW-3. By way of documentary evidence, the defendant has placed on the file Ex.D1 to Ex.D-32 (Photostat copies of the rent receipts issued by the plaintiff). Thereafter, learned counsel for the defendan closed his evidence vide his statement recorded separately. The learned trial Court discussed Issues Nos. 1,2,3,4, 5,7,8, 9 and 11 together and on the question of jurisdiction of the Civil Court observed as under:- “Accordingly, I am of the view that since the shop in dispute had been constructed in July,1998, the same is exempted from the provisions of Haryana Urban (Control of Rent and Eviction) Act,1973 up to the period of 10 years. The suit has been filed on 05.3.2002 i.e. before expiry of 10 years, as such, the civil courts have jurisdiction to try and decide this issue and the suit is maintainable in the present form”. In fact, the trial Court decided all the questions in favour of the plaintiff except the validity of notice issued under Section 106 of the Act, which was decided against the plaintiff observing thus:- “Now it is to be considered as to whether the notice dated 15.1.2002 placed on the file as Ex P-5/Ex.P-6 is a legal and valid notice or not. In the case in hand, admittedly the tenancy commenced from 28th of every month and ended on 27th of next month and as such in the RSA No.3494 of 2007(O&M) 6 instant case the tenancy was required to be terminated by the end of 27th of January,2002 or of February,2002. The notice to quit the shop in dispute is dated 15.1.2002 and the postal receipts also reveal that the same had been posted by the plaintiff on 15.1.2002 itself and in para No.6 of said Notice , it has been mentioned that --- 'tenancy will stand terminated on the expiry of 15 days from the date of the receipt of this notice and thereafter you will be no more tenant and you are here by called upon to hand over the possession of the shop'---. A perusal Ex.P-7 reveals that the registered cover vide which the notice to quit the shop had been issued by the plaintiff had been returned back with the report of refusal on 18.1.2002, that is to say. That 18.1.2002 will be deemed to be the date of the receipt of notice, for since the receipt of the notice had been refused by defendant, it will be deemed that the contents of the notice were in the knowledge of the defendant. As such, the date of receipt of the notice to quit is 18.1.2002 and thereafter 15 days' notice was required to be given to him to hand over the vacant possession of the shop in dispute to the plaintiff but simultaneously it was also necessary that the notice to quit should have terminated the tenancy by the end of the month of tenancy. As I have already discussed that the tenancy in the case in hand had been ending on 27th of every month, as such, notice to quit should have terminated the tenancy of the defendant by the end of 27th of January,2002, whereas a perusal of Ex. P-5/Ex.P-6 reveals that the tenancy of the defendant had been terminated w.e.f. 1.2.2002, for it has been mentioned therein that the tenancy of the defendant will be deemed to have been terminated within the period of 15 days of the receipt thereof. Since the notice will be deemed to have RSA No.3494 of 2007(O&M) 7 been served on 18.1.2002, the tenancy in the case in hand will have to be deemed to have been terminated by the plaintiff w.e.f 1.2.2002 and in this manner the notice to quit placed on the file as Ex. P-5/Ex P-6 cannot be said to be a notice terminating the tenancy expiring with the end of the month of the tenancy. Since the tenancy had been terminated w.e.f. 1.2.2002, the tenant was entitled to remain in the suit premises till then and a fresh month had already commenced w.e.f. 28th of January,2002 and as such, the notice could not have been served during the tenancy period and as such the same is bad in law and is not good enough for terminating the tenancy. Accordingly, I am of the view that since the tenancy of the defendant had not been terminated by the plaintiff in accordance with law, the defendant remains as tenant till today and he cannot be vacated from the suit property on the basis of the notice to quit which has been placed on the file as Ex. P-5/Ex.P-6.” On the basis of the aforesaid finding, the suit of the plaintiff was dismissed. Eventually, both the plaintiff and the defendant filed their first appeals before the learned Appellate Court. The plaintiff filed an appeal against the judgment and decree dated 31.8.2005 vide which his suit had been dismissed, whereas the defendant filed cross appeal challenging the finding recorded by the learned trial Court in para Nos.2 and 3 of the judgment wherein it has been observed that the Civil Court has jurisdiction as the demised premises is found to have been constructed within 10 years. The learned lower Appellate Court allowed the appeal filed by the plaintiff and dismissed cross appeal filed RSA No.3494 of 2007(O&M) 8 by the defendant vide its judgment and decree dated 12.9.2007. While dismissing the cross appeal filed by the defendant on the issue of jurisdiction of the Civil Court, it has been observed as under:- “ The first question of determination is as to whether the disputed shop was constructed in the year 1998 and the provisions of Haryana Rent Act are not applicable on account of exemption of 10 years from the operation of Haryana Urban Rent Control Act from the date of construction. After going through the evidence and circumstances of the case, it emerges that the plaintiff purchased the disputed property vide sale deed Ex.P-2 dated 4.9.1997 and as shown in site plan Ex. P12/A attached with the said sale deed. From the perusal of the said sale deed, it is evident that the said dilapidated structure has been purchased from Naresh Kumar by the plaintiff/appellant and thereafter, the plaintiff/appellant prepared a proposed site plan Ex.P-1 and submitted the same for sanction to the Municipal Committee and the Municipal committee vide letter Ex.P-2 sanctioned the site plan Ex.P-3 on 29.5.1998. The factum of new construction in the month of July,1998 has also been mentioned in the agreement Ex.P11, which was executed between the plaintiff./appellant and defendant/respondent/cross objector and the said agreement of lease has been duly proved by the plaintiff/appellant. Therefore, in view of specific recital in agreement Ex.P-11, which is the basis of creation of lease between the parties, it has to be held that the learned trial Court has rightly come to the conclusion that the disputed structure was newly constructed in the month of July 1998 and there is no escape for the RSA No.3494 of 2007(O&M) 9 defendants/respondent/cross objector to say that the disputed shop was not constructed in the month of July, 1998 and as such, it has to be held that there is illegality or infirmity in the finding recorded by the learned trial Court to the effect that the disputed shop was constructed in the month of July,1998 and, thereafter, the same was let out vide Ex. P-11 for three years and the suit has been filed between the period of 10 years and as such the provisions of Haryana Urban Control Act, are not applicable to the disputed premises and has rightly held that the civil suit for possession was maintainable”. Thus, concurrent finding has been recorded by both the Courts below about the year of construction of the demised premises holding that the Civil Court has the jurisdiction. Insofar as the question of validity of notice under Section 106 of the Act is concerned, the learned Appellate Court has reversed the finding of the learned trial Court observing thus:- “ No doubt, the learned trial Court has held that the notice dated 15.1.2002 Ex.P-5/Ex./P-6 was not a valid notice as the plaintiff now appellant was required to give a clear 15 days time to the tenant/defendant/respondent to vacate the possession of the shop in dispute and the notice to quit should have terminated the tenancy by the end of the month of tenancy i.e. tenancy must have been terminated by the end of 27th of January,2002 whereas the tenancy would be deemed to be terminated on 1.2.2002 in view of the service of the notice on 18.1.2002 as 15 days would be counted from 18.1.2002 which would expire on 1.2.2002 and consequently, the learned trial Court has dismissed the suit of the plaintiff on account of defective notice Ex.P- RSA No.3494 of 2007(O&M) 10 5/Ex.P-6, but in the opinion of the Court, the learned trial Court has committed grave error in not applying its mind that the provisions of Transfer of Property Act are not strictly applicable to the Punjab and Haryana as held in Avinash Chander etc. Vs. M/s Garg Wool Co. and others (Supra) by our own Hon'ble High Court, where it was held that “merely equitable principles of Transfer of Property Act have been made applicable to the State of Haryana. The Hon'ble High Court has further held that:- “The tenancy can be terminated by notice providing reasonable period to the tenant to surrender possession. Merely because the notice was not in the form mentioned in Section 106 of the Act, it will not be assumed that the tenancy not terminated and the tenant was not called upon to deliver possession to the land owner.” It was further held that :- “the tenor of the notice indicates that the landlord terminated the tenancy and required the tenant to hand over vacant possession of the demised premises after 15 days. Two weeks time was allowed to the tenant to hand over vacant possession. The period mentioned in the notice relates to the surrendering of the possession. The notice is not ambiguous. If it is read in the context of the earlier statement therein that the tenancy is not protected under the Haryana Rent Act,the plaintiff intended to give reasonable notice to the defendant to vacate the demised premises after terminating the tenancy and he accordingly gave 15 days' time to vacate the premises from the date of the receipt of the notice. Thus the language of the notice is clearly suggestive of the fact that the tenancy was terminated and the tenant was called upon to RSA No.3494 of 2007(O&M) 11 surrender possession after 15 days from the date of receipt of the notice”. The Hon'ble Apex Court in Bhagabandas Agarwalla Versus Bhagwandas Kanu and others (Supra) has also held that:- “The notice to quit requiring the tenant to vacate the premises “within the month of October 1962 otherwise he would be treated as trespasser from Ist November, 1962” made the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October,1962 and not with effect from any earlier point of time during the currency of that month. The tenancy was,therefore. sought to be determined on the expiration of the month of October,1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by Section 106. It was in the circumstances a valid notice which effectively determined the tenancy of the tenants with effect from the mid night of 31st October,1962”. The reliance has also been placed upon Bimla Devi Versus Vishan Dass 1993 (3) Recent Revenue Report-68. Therefore, keeping in view the circumstances of the case and the ratio laid down in the above referred authorities and also keeping in view the fact that strict provisions of Section 106 of the T.P.Act are not applicable to the States of Punjab and Haryana, the crux of the matter is that only 15 days, time is required to be given to the tenant for terminating his tenancy and thereafter, the cause of action would be deemed to have accrued if the possession was not handed over by the tenant to file a suit for possession after the expiry of said period of 15 days as contemplated in Section 106 of the Transfer of Property Act, it RSA No.3494 of 2007(O&M) 12 would have been a different situation if the provisions of Transfer of Property Act, were made applicable to the State of Haryana. In the State of Haryana, only the bare equitable provisions of Transfer of Property Act are applicable to regulate the property transaction”. Aggrieved against the judgment and decree of the learned First Appellate Court,where by the appeal filed by the plaintiff has been allowed and cross appeal filed by the defendant has been dismissed, only one appeal has been filed by the defendant in which he has challenged both the question of jurisdiction of the Civil Court as well as validity of notice issued under Section 106 of the Act In the present appeal, notice of motion was issued on 19.10.2007 and in the meantime, execution of the judgment and decree of the first Appellate Court was stayed whereby the suit of the plaintiff was decreed. During the pendency of the appeal, the defendant/appellant had paid a sum of Rs. 1,37,600/- to the legal representatives of respondent Mahavir Parshad (since deceased) on account of rent due up to March,2009. On 30.5.2009, rent for another three months to the tune of Rs.9600/- up to 30.6.2009 was paid and accepted by the plaintiff/respondent subject to calculations. On 6.10.2009, the appellant tendered a sum of Rs.19,200/-as rent/mesne profits up to December,2009. It is pertinent to mention here that on the request of learned counsel for both the parties, record of the both the Court below was also requisitioned. Learned counsel for the appellant has basically challenged RSA No.3494 of 2007(O&M) 13 the finding of the Courts below on two issues, namely jurisdiction of the Civil Court and validity of notice to quit. Opening his arguments, learned counsel for the appellant has argued that recital in the rent deed of the new construction of the demised premises cannot be accepted and it is not possible to construct four shops within a period of one month. The argument raised by the learned counsel for the appellant appears to be half hearted attempt to demolish the concurrent finding of fact recorded by both the Courts below which is based upon appreciation of oral as well as documentary evidence. It has come in evidence through sale deed Ex. P-12 that the property out of which the demised premises has been constructed was purchased by the plaintiff in a dilapidated condition from one Naresh Kumar. The plaintiff has placed on record the site plan Ex.P-1 to Ex.P-3, sanction letter Ex. P-2 vide which he has been permitted to raise construction on the ground floor of the earlier building. Besides, it is categorically mentioned in the rent note Ex.P-11 that the tenanted premises has been freshly constructed in the month of July,1998. The said rent note bears the signatures of the defendant/appellant which has been proved with the help of marginal witnesses. It has also come in evidence that the possession of the demised premises which was to be delivered on 16.8.1998 could not be delivered and was actually delivered on 28.8.1998 as white wash and shuttering work had not completed. Therefore, agitation of the appellant that both the Courts below arrived at a finding of fact that the demised premises has been newly constructed within a period of 10 years only on the basis of recital in the agreement (Ex.P11), is not well founded. The finding of fact has been recorded on RSA No.3494 of 2007(O&M) 14 the basis of appreciation of both oral as well as documentary evidence and as such, I do not find fault with it. The second question that has been raised by the learned counsel for the appellant is with regard to the validity of notice to quit which has been reversed by the learned first Appellate Court. Learned counsel for the appellant has vehemently argued that the tenancy was from 28th of every month ending on 27th of next month could not have been terminated by the plaintiff by issuing a notice dated 15.1.2002 (Ex.P-5/Ex.P-6) as it would terminate the tenancy, if the period is to be counted from 18.1.2002 from the date when the service of notice is alleged to have been effected on 1.2.2002 on which date, the appellant was a tenant as the fresh tenancy would commence w e.f. 28.1.2002 and the notice to quit was not good enough for terminating the tenancy. However, on the other hand, learned counsel for the respondent has relied upon a decision of this Court in the case of Avinash Chander Etc. Vs. M/S.Garg Wool Co. and others (1991- 92) P.L.R 61, in which it has been held as under:- “Held that indisputably the provisions of Section 106 of the Transfer of Property Act (for short the Act) do not apply to the State of Haryana and merely its equitable principles have been applied. The tenancy can be terminated by notice providing reasonable period to the tenant to surrender possession. Merely because the notice was not in the form mentioned in Section 106 of the Act, it will not be assumed that the tenancy is not terminated and the tenant was not called upon to deliver possession to the landowner. RSA No.3494 of 2007(O&M) 15 Further held that the tenor of the notice indicates that the landlord terminated the tenancy and required the tenant