RSA No. 4035 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4035 of 2006(O&M) Date of Decision: April 09, 2010 Smt. Indu Sharma ...... Appellant Versus Devinder Kumar and another ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.P.K.Gupta, Advocate for the appellant. Mr.Sunidh Kashyap, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below evicting the appellant from the house of the respondents. The respondents had filed a suit on the allegation that the premises were exempted from the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 since the construction of the house had been completed less than 10 years prior to the filing of the notice and the suit. Prior to the suit registered notice had been issued to the appellant under section 106 of the Transfer of Property Act wherein it was categorically mentioned that the construction of the house had been completed on RSA No. 4035 of 2006(O&M) 2 30.4.1986. This assertion was unequivocally accepted in reply to the said legal notice which was sent by the counsel for the appellant. The learned trial Court without really considering this aspect of the matter held that the property had been constructed in the year 1983 and despite the fact that the suit was filed in the year 1995 and was for possession and thus beyond the exemption period, in view of its finding regarding date of construction, still went ahead and decreed the suit. Learned Lower Appellate Court after considering the pleadings and the legal notice and reply thereto came to the conclusion that the house was proved to have been constructed in the year 1986. Consequently the learned Lower Appellate Court also decreed the suit. Another factor which weighed with the Courts below was that the appellant had denied the title of the respondent. The following issues have been proposed:- a) Whether the suit filed by the respondents after completion of 10 years exemption under the Haryana Urban (Control of rent and Eviction) Act, 1973 is maintainable? b) Whether the court below is competent to make out a new case for respondents which is beyond the pleadings on the file? c) Whether the judgment of the learned Lower Appellate Court is worth to set aside as the learned lower Appellate Court has held that the judgment of the trial court to the point for the premises was constructed in the year 1983 is illegal and in that eventuality when the court comes to the conclusion that the findings recorded by the trial court on the major issues regarding the year of construction is wrong, it was connected case after acceptance of appeal to remand the matter to the trial court for deciding it on merits or to accept the appeal in toto? d) Whether the trial court has wrongly decreed the suit of the respondents when it was patently time barred and was barred under the statute, under the Haryana Urban(Control of Rent & Eviction) Act? RSA No. 4035 of 2006(O&M) 3 e) Whether the judgment of the learned Lower Appellate Court is illegal, contrary to law and is not sustainable in the eyes of law? f) Whether the judgment of the learned Lower Appellate Court without considering the judgment cited at bar i.e. 1964 SC 538 is not sustainable in the eyes of law and is worth to set aside? g) Whether the learned lower Appellate Court declining to condonation of delay is also not sustainable in the eyes of law? h) Whether the application under Order 41 rule 27 CPC has been illegally rejected by the learned Lower Appellate Court and reasons given are not sustainable? As regards questions No. (a), (c) and (d ) are concerned they are related questions. No doubt the finding of the learned trial Court on the maintainability of the suit in the face of the finding that the house was constructed in 1983 is incorrect, yet the approach of the learned Lower Appellate Court cannot be termed to be illegal, particularly in view of the categoric assertion in the notice and the unequivocal acceptance thereof in the reply. Thus questions No. (a),(c )and (d) have to be answered against the appellant. Question No. (b) also has to be answered against the appellant. Para 3 of the plaint is in the following terms:- “That the above house under the tenancy of the defendant was constructed and completed in the year 1986 and the same is exempt from the provisions of Haryana Urban (Control of Rent and Eviction)Act No.II of 1973.” Para 3 of the written statement is in the following terms:- That para No.3 of the plaint is wrong and denied. T here is no relationship of landlord and the tenant.” In my opinion no case has been made out that the learned RSA No. 4035 of 2006(O&M) 4 Lower Appellate Court travelled beyond the pleadings. Questions No. (e) and (f) are general questions on which no arguments have been addressed. As regards question No. (g), in view of the opinion that I have formed on the merits of the case, the decision of this question even if it goes in favour of the appellant, cannot advance his case. No arguments have been raised on the remaining questions. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE April 09, 2010 sunita