R.S.A.No. of 4590 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. of 4590 of 2009 (O&M) Date of decision: 9.12.2009 M/s Gulshan Rai and sons and another ......Appellants Versus Kuldeep Kaur .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Akshay Bhan, Advocate, for the appellants. **** SABINA, J. Plaintiff Kuldeep Kaur filed a suit for ejectment, which was decreed by the Additional Civil Judge (Sr.Divn.), Kaithal vide judgment and decree dated 4.6.2007. In appeal, the said judgment and decree were upheld by the District Judge, Kaithal vide judgment and decree dated 11.11.2009. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 and 4 of its judgment, are as under:- “3. Briefly stated the facts of the case as emanating from the pleadings of the parties are that the plaintiff Kuldeep Kaur, claiming herself to be the owner as R.S.A.No. of 4590 of 2009 (O&M) 2 well as landlord of the above shop forming part of the building bearing MCK No.222-A/10 as shown in the red colour in the site plan Ex.P-7, sought the ejectment of the defendants from the above shop. She pleaded that the defendants had taken the above shop on rent vide rent note dated 4.7.1996 fixing the monthly rent of Rs.800/-. It was further pleaded that the construction of the shop was completed in the month of Feburary, 1996 and, therefore, the provisions of Harayana Urban (Control of Rent and Eviction) Act were not applicable to this property. She further pleaded that the rate of rent was enhanced to Rs.1,200/- per month in the month of June 2001. The defendants further agreed that they would pay the enhanced rent of Rs.400/- per month after two years. After the expiry of those two years the defendants failed to pay the arrears. Accordingly, the plaintiff terminated the tenancy by serving the defendants with registered notice dated 22.7.2004 and filed the above suit for seeking the ejectment of the defendants from the above shop . She further claimed the recovery of mesne profits for the use and occupation of this shop as mentioned in the notice till the delivery of the actual possession of the shop. 4. The defendants in their written statement R.S.A.No. of 4590 of 2009 (O&M) 3 admitted the relationship of landlord and tenant between the parties as pleaded in the plaint. They further pleaded that the shop was let out to them vide rent note dated 4.7.1996. It was further added by the defendants that at the time of inception of the tenancy a sum of Rs.50,000/- was paid by them to the plaintiff vide receipt dated 6.8.1996 as premium money. They denied that the shop was constructed in the month of February 1996. They claimed that the construction was more than 40 years old and, therefore, this Court has got no jurisdiction to try and entertain the suit as the provisions of Haryana Urban (Control of Rent and Eviction) Act were applicable to this building. They denied that the rate of rent was enhanced as pleaded in the plaint. They pleaded that the rate of rent was Rs.800/- per month and they had already made the payment of the arrears upto 31.7.2004. they tendered further arrears of rent in the court. They also denied that the tenancy had been legally terminated as pleaded in the plaint. With these averments the defendants prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the provisions of Haryana Urban Rent (Control and Eviction) Act are not applicable to the suit R.S.A.No. of 4590 of 2009 (O&M) 4 property if so its effect? OPP 2. Whether the rate of rent of shop in dispute is Rs.1200/- per month ? OPP 3. Whether the tenancy of the defendants has been terminated vide registered notice dated 22.7.2004 if so its effect? OPP 4. Whether the defendants are in arrears of rent if so its effect? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether this Court has got no jurisdiction to entertain and try this suit? OPD 8. Relief After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The only question that requires consideration in this case is as to whether the suit had been filed for ejectment within ten years of construction of the shop in dispute or beyond the period of ten years of its construction. In case the suit was filed after ten years of construction of the shop in dispute then provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Act') would be applicable, whereas, in case the suit had been filed within ten years of the construction of the shop th en the provisions of the Act would R.S.A.No. of 4590 of 2009 (O&M) 5 not be applicable in view of Section 1 (3) of the Act. The material document in this regard is site plan, which was got sanctioned in the year 1995. Learned counsel for the appellants, during the course of arguments, has shown affidavit Ex.P-8 of the plaintiff. In para 1 of the affidavit, it has been stated that the plaintiff was owner of the shop in dispute. However, in the next paragraph, it has been mentioned that after the plan was sanctioned, the construction would be raised as per the site plan. Thus, there is no force in the argument raised by learned counsel for the appellants to the effect that the plaintiff had admitted the existence of the shop in Ex.P-8, her affidavit. The document has to be read as a whole. It appears that in para 1 of the affidavit, due to inadvertence, it has been mentioned that the plaintiff was owner of the shop in dispute instead of plot. It is evident from the affidavit that, in fact, construction was yet to be raised and the plaintiff had stated that the construction would be raised as per the site plan. Admittedly, the shop in dispute was let out to the defendants w.e.f. 4.7.1996. The suit was filed for ejectment on 24.8.2004. Hence, the Courts below rightly came to the conclusion that the suit had been filed within ten years of the construction of the shop in dispute and hence, the provisions of the Rent Act were not applicable. Moreover, learned District Judge, in the impugned judgment has observed that as per decree sheet Ex.P-2 passed on 3.3.1994, on the basis of compromise arrived at between the parties, portion shown in red R.S.A.No. of 4590 of 2009 (O&M) 6 colour in the site plan in the Northern corner was shown as open space. At that time, the parties to the suit did not know that the shop would be constructed on this open space and the same would be let out to the defendant. In these circumstances, it was rightly held that there was no ground to take that the shop was in existence on the day, the site plan Ex.P-4 was prepared or decree dated 3.3.1994 was passed. Site plan Ex.P-9 showed the proposed construction to be raised on the open space qua which affidavit Ex.P-8 was executed. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 09, 2009 anita