RSA No.2857 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2857 of 2010 (O&M) Date of decision: 9.12.2010 Laxmi Chand ......Appellant(s) Versus Smt. Janak Dulari ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.C. Shahpuri, Advocate for the appellant. Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit for possession of the shop in dispute along with recovery of mesne profits was decreed in favour of the plaintiff-respondent. As per the averments made in the suit, the shop in dispute was let out to the appellant on 1.1.1991 on a monthly rent of ` 450/- plus house tax and a rent deed dated 4.1.1991 was executed between the parties. The shop in dispute was let out for a period of 11 months i.e. from 1.1.1991 to 30.11.1991. Later on, the rate of rent of the aforesaid shop was enhanced with the consent of the appellant to ` 560/- per month inclusive of house tax w.e.f. 1.1.1998 onwards. Since the appellant failed to surrender the actual and physical possession of the shop in dispute on expiry of the tenancy, the subsequent tenancy was from month to month and the rent was payable on 1st day of each month in advance. It is the further case of the plaintiff-respondent that the appellant did not pay the rent of the shop in question w.e.f. 1.3.1999 upto 10.3.2000 and his tenancy was terminated on 11.3.2000 vide registered notice dated 21.2.2000 and thus, the appellant was liable to hand over the vacant possession of the RSA No.2857 of 2010 (O&M) 2 shop in dispute and was also liable to pay a sum of ` 7830/- along with interest at the rate of 9% per annum on account of arrears. It was also pleaded by the plaintiff-respondent that if the appellant had vacated the shop in question, it could have fetched rent at the rate of ` 1120/- per month and as such, he was liable to pay mesne profit at the rate of ` 1120/- per month from the date of filing of the suit till the delivery of actual and physical possession of the shop to him. It is the further pleaded case of the plaintiff-respondent that the construction of the shop in question along with other shops was completed on 30.11.1990. Thus, the plaintiff- respondent prayed that a decree for possession with regard to the shop in question by way of ejectment of the appellant as well as for recovery of ` 8280/- as arrears of rent and compensation along with pendente lite and future mesne profits at the rate of ` 1120/- per month and interest at the rate of 9% per annum from the date of institution of the suit till its realization/delivery of actual and physical possession of the shop in question, be passed in his favour. Upon notice, the appellant appeared and filed written statement raising various preliminary objections. It was further submitted by him that shop in question was let out to him at the rate of ` 450/- per month inclusive of house tax vide rent note for 11 months i.e. upto 30.11.1991. The rate of rent of the shop in question was later on increased mutually to ` 560/- per month inclusive of house tax w.e.f. 1.2.1998. Relationship of landlord and tenant between the parties to the suit was also admitted. It was further pleaded by the appellant that after expiry of tenancy on 30.11.1991, the plaintiff-respondent used to receive rent and never asked for vacation of the shop in question and as such, the tenancy was continuing. It was further stated by the appellant that w.e.f. March, 1999, the rent was not accepted by the plaintiff-respondent but he was still RSA No.2857 of 2010 (O&M) 3 ready and willing to pay the rent against the valid receipt. It was further submitted that he cannot be dispossessed from the shop in dispute on the ground taken by the plaintiff and question of termination of his tenancy by issuing notice under Section 106 of the Transfer of Property Act does not arise as he never defaulted or breached any term of tenancy. Dismissal of the suit was prayed for. By filing replication, the plaintiff-respondent controverted the averments contained in the written statement filed by the appellant and reasserted the pleas taken by him in the plaint. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether plaintiff is entitled to the possession of the suit property, as prayed for? OPP 2. Whether plaintiff is entitled to recover the suit amount along with compensation and interest? OPP 3. Whether plaintiff is entitled to recover mesne profits from the defendant on account of unauthorized use and occupation of suit property. If so, how much? OPP 4. Whether plaintiff is estopped from filing the present suit by his won act and conduct? OPD 5. Whether suit is not maintainable in the present form? OPD 6. Whether plaintiff has no locus standi or cause of action to file the present suit? OPD 7. Whether the present suit is time barred? OPD 8. Relief.” After considering the evidence on record and hearing learned RSA No.2857 of 2010 (O&M) 4 counsel for the parties, the trial Court decreed the suit in favour of the plaintiff-respondent. While decreeing the suit, the trial Court found that there was no dispute that the construction of the shop in question was completed in the year 1990 and the present suit was filed within a period of 10 years from the date of completion of construction of the shop in question and therefore, the provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973, were not applicable in the present case. It was further found by the trial Court that the tenancy which was for a period of 11 months ended on 30.11.1991 and the issuance of notice dated 21.2.2000 to the appellant as well as its receipt for vacation of the shop in question was not disputed and thus, the relationship of landlord and tenant ceased to exist and there was nothing on record to show that the plaintiff- respondent ever intended to waive the notice of termination of tenancy by receiving rent thereafter. Thus, the plaintiff was also entitled to recover the possession of the shop in question as well as arrears of rent for the period of 1.3.1999 to 10.3.2000 along with mesne profit at the rate of ` 560/- per month inclusive of house tax from the date of termination of tenancy i.e. 11.3.2000 till the date of delivery of possession of the disputed shop. The appeal filed by the defendant against the aforesaid judgment and decree of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree. It may also be noticed that cross-objections filed by the plaintiff-respondent claiming higher mesne profits were accepted. Still not satisfied, the defendant has filed the instant appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal: “(i) Whether the judgments/decrees passed by both the learned courts below are totally illegal, erroneous RSA No.2857 of 2010 (O&M) 5 and against the law and facts and evidence of the case? (ii) Whether the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 are applicable to the shop in question and as such the suit of the plaintiff respondent is hit by the said provisions and is not legally maintainable? (iii) Whether the notice issued by the plaintiff/respondent issued under Section 106 of the Transfer of Property Act was illegal and the provisions of Haryana Rent Act are applicable? (iv) Whether the findings of the Learned Lower Appellate Court granting the mesne profits @ Rs.1120/- p.m. are totally against the facts and evidence on the record? (v) Whether the suit filed by the plaintiff/respondent is hopelessly time barred? (vi) Whether there is a misreading of evidence by both the learned courts below? (vii) Whether grave and manifest injustice has been caused to the present appellant?. In support of this appeal, learned counsel for the appellant has vehemently argued that the Courts below have failed to consider the evidence on record and the well settled principles of law. Elaborating his argument further, learned counsel for the appellant has submitted that in the present case, the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973, are applicable as the suit filed by the plaintiff- respondent which was filed after expiry of 10 years from the date of completion of the construction of the aforesaid building, was not RSA No.2857 of 2010 (O&M) 6 maintainable. Moreover, from the facts established on record, it is made out that the notice dated 21.2.2000 terminating the tenancy was waived by the plaintiff-respondent due to the fact that he continued to receive the rent and thus, in view of the aforesaid submissions , the substantial question of law, as raised, are liable to be answered in favour of the appellant and the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant and have perused the impugned judgment and decrees of the Courts below. The arguments raised by the learned counsel for the appellant are noticed to be rejected. The present suit was filed on 29.4.2000. While returning the findings in favour of the plaintiff-respondent, both the Courts below on appreciation of evidence have recorded a finding of fact that the application for getting the plan sanctioned for construction of the shop in question alongwith other shops was submitted by the plaintiff-respondent on 21.8.1990, which was forwarded by the concerned authorities for issuance of No Objection Certificate and after submitting the said application, the plaintiff-respondent had started construction and the same was completed on 30.11.1990. There is no evidence on record to controvert the aforesaid findings recorded by the Courts below. Thus, the argument of the appellant that provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973, are applicable in the present case is not sustainable as it is not in dispute that a newly constructed building is exempted from the provisions of the Rent Act in the State of Haryana for a period of 10 years and in the present case, the present suit was filed well within the period of exemption. The second argument of the appellant regarding waiver of notice to quit qua the property let out to him on the ground of receiving rent RSA No.2857 of 2010 (O&M) 7 during tenancy of the suit for ejectment is also liable to be rejected in view of the judgment in the case of Mangal Dass vs. Bahadur Singh Chauhan 2007(1) CCC 268. Admittedly, there is no evidence on record to show that the plaintiff-respondent had ever shown his intention to waive the notice to quit. It may also be relevant to mention at this stage that the appellant has also raised grievance against the payment of mesne profits as granted to the plaintiff-respondent by the Lower Appellate Court. However, the aforesaid argument could also not be substantiated. In this view of the matter, I find no merit in this appeal. No substantial question of law, as argued, arises. Dismissed. December 9, 2010 (RAKESH KUMAR GARG) ps JUDGE