IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 36 of 2011 Judgment reserved on :5.7.2011 Date of decision: 02.08.2011 Ram Nath …Appellant. Versus Mehar Chand ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondent : Mr. Ajay Sharma, Advocate. Kuldip Singh , Judge The defendant having lost in both the Courts has come in second appeal against judgment, decree dated 29.11.2010 passed by learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 97/08 affirming judgment, decree dated 15.9.2008 passed by learned Civil Judge (Junior Division), Court No.II, Amb in Civil Suit No. 105/2002. 2. The facts, in brief, are that respondent had filed a suit for possession by way of ejectment of appellant from two shops and veranda situate on khasra No. 558 village Mubarakpur more particularly shown by letters ABCD in the site plan and for recovery of ` 42,000/- on account of arrears of rent from June 1999 to April, 2002 onwards on account of use 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 and occupation charges of the said two shops together with interest at the rate of 12% per annum. 3. The further case of the respondent is that appellant was inducted as tenant and his tenancy has been terminated vide registered notice dated 13.2.2002. The rate of rent is `1200/- per month. The appellant has not paid rent from June, 1999 to April, 2002. The possession of the appellant after termination of the tenancy is illegal in the shops, therefore, he is liable to pay use and occupation charges at the rate of ` 2000/- per month from May, 2002 onwards. The respondent has also claimed interest on the rent and use and occupation charges. 4. The suit was contested by the appellant by filing written statement in which he took preliminary objections of maintainability, cause of action, estoppel and valuation. On merits, it was admitted that he was inducted as tenant in the shops. The rent is ` 500/- per month which he has paid upto April, 2002. Thereafter, the respondent has refused to accept the rent. The suit has been filed in order to compel the appellant to increase the rent. The notice dated 13.3.2002 was duly replied. The appellant prayed for dismissal of the suit. The respondent filed replication. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for the possession of suit shops? OPP 2. Whether plaintiff is entitled for recovery of `42,000/- on account of rent, as alleged? OPP 3 3. Whether plaintiff is entitled for further amount of ` 2000/- per month, as alleged? OPP 4. Whether the suit is not maintainable? OPD 5. Whether plaintiff has no cause of action? OPD 6. Whether plaintiff is estopped by act and conduct? OPD 7. Whether suit is not properly valued? OPD 8. Whether rent of suit premises is at the rate of `500/- per month, as alleged? OPD 9. Relief. 6. The issues No. 1 and 8 were answered in affirmative, issues No. 2, 3 partly in affirmative and issues No. 4 to 7 in negative. The trial Court decreed the suit on 15.9.2008 for possession from the premises in question w.e.f. 14.4.2002. A decree for recovery of rent at the rate of ` 500/- per month for the period 13.2.2002 to 13.4.2002 and for recovery of use and occupation charges at the rate of ` 500/- per month from 14.4.2002 till handing over of vacant possession alongwith interest at the rate of 9% per annum was passed. The lower Appellate Court on 29.11.2010 affirmed the judgment and decree passed by the trial Court, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether the learned Courts below have misread and mis- appreciated the pleadings of the parties as also the evidence on record, both oral as well as documentary, especially, the statements of PW-1, PW-2, DW-1, Exts.PW-1/A, Exts.DW-1 to DW-6 (sic Ex.D-1 to Ex.D-6), DA to DE and on account of 4 such misreading and mis-appreciation, whether the impugned findings are sustainable in law? 2. Whether the suit for ejectment based under the provisions of Section 106 of the Transfer of Property Act is permissible on the allegations of the tenant being in arrears of rent and whether cause of action accrues to the plaintiff/landlord for filing such suit without satisfying the conditions that the tenant had not paid the rent even after 30 days of the notice and was not ready and willing to pay the rent thereafter and whether without any cause of action accruing to the landlord, said suit is maintainable? 7. I have heard the learned counsel for the parties and have also gone through the record. Mr. Sanjeev Kuthiala, Advocate has submitted that the two Courts below have mis-construed and mis- interpreted the statements of PW-1, PW-2, DW-1 and also Exts. PW-1/A, Ex.D-1 to Ex.D-6 and Ex.DA to Ex.DE. It has been submitted that in view of case projected by respondent he has no cause of action for filing the suit under Section 106 of the Transfer of Property Act on the ground that tenant is in arrears of rent or that respondent had not paid the rent even after 30 days of the notice and was not ready and willing to pay the rent thereafter. Mr. Sanjeev Kuthiala, Advocate has also submitted that the lower Appellate Court has wrongly held that use and occupation charges are payable at the rate of ` 2000/- per month. The trial Court has allowed use and occupation charges at the rate of ` 500/- per month against which no appeal was filed by the respondent. The learned counsel for the respondent has supported the impugned judgment, decree. He has 5 submitted that the two courts below have recorded a finding of fact against the appellant. The impugned judgment, decree require no interference. 8. The aforesaid substantial questions of law No. 1 and 2 are inter-connected, therefore, both of them are taken up together for determination. PW-1 Mehar Chand has stated that he had rented out two shops to appellant at the rate of ` 500/- per month in the year 1973. He has stated that the rent upto March had been paid, then said rent upto May, 1999 has been paid. He got the notice issued through the Advocate after one month of stopping of payment of rent by the appellant. He denied that the appellant had never agreed to enhance the rent from ` 500/- to `1200/- per month. PW-2 Gurdev Singh has stated that Tarlok Chand used to prepare the plans while sitting in his office. He had seen Tarlok Chand while preparing plans. Tarlok Chand has died in an accident. Ex.PW-1/C is the plan prepared by Tarlok Chand. He identified signatures of Tarlok Chand on the plan. 9. DW-1 Ram Nath in his statement has stated that he had rented out his shop near Petrol Pump but he denied that he is receiving the rent of that shop at the rate of `2000/-. He denied that he had not paid rent after June, 1999. He denied that he had not paid the rent to respondent upto April, 2002. 10. Ex.PW-1/A is the notice dated 13.3.2002 issued by Narender Sharma, Advocate to appellant terminating the tenancy of the appellant of the shops. In the notice `.40,800/-rent from June, 1999 to March 2002 at the rate of ` 1200/- per month and then at the rate of `2000/- per month on expiry of one month notice has been claimed. The 6 notice of one month for vacating the shops has been given. Ex.D-1 to Ex.D-6 are the rent receipts. The receipt Ex.D-6 is for `1500/- rent for May to June, 2002. The appellant has placed on record Ex.DA, Ex.DB, Ex.DC, Ex.DD and Ex.DE trading account as on 31.3.1998, 31.3.1999, 31.3.2000, 31.3.2001 and 31.3.2002 indicating item of rent `.4500/-, `4850/-, ` 5400/-, `.6000/- and `.6500/- respectively. The documents Ex.DA to Ex.DE were taken on record vide order dated 10.9.2008 and Ex.D-1 to Ex.D-6 were tendered in evidence by the counsel for the appellant. 11. The item of rent mentioned in Ex.DA to Ex.DE is not connected with the rent of the premises, therefore, Ex.DA to Ex.DE cannot be used by the appellant for payment of rent. The respondent has proved that the tenancy of the appellant was terminated vide notice Ex.PW-1/A. The trial Court has determined the rent of the premises `500/- per month. The trial Court has allowed use and occupation charges of the premise at the rate of `500/- per month from 14.4.2002. The trial Court has allowed interest at the rate of 9% per annum on the arrears. 12. The submission of the learned counsel for the appellant that even after termination of the tenancy vide notice Ex.PW-1/A the respondent has no cause of action for filing the suit has no force. Once the tenancy of the appellant has been terminated vide notice Ex.PW-1/A then the appellant has no right to occupy the premises in question. The court below has allowed the rent at the rate of `500/- per month from 13.2.2002 to 13.4.2002 and use and occupation charges at the rate of 7 `500/- per month from 14.4.2002 till handing over of the vacant possession of the premises in question by the appellant to respondent. 13. The lower Appellate Court has erred in allowing `.2000/- per month use and occupation charges on the ground that such rate has been determined by trial Court. This observation of the lower Appellate Court is wrong inasmuch as the trial Court has never allowed use and occupation charges at the rate of `.2000/- per month, therefore, to this extent, the finding of the lower Appellate Court that respondent is entitled to use and occupation charges at the rate of `.2000/- per month is liable to be set-aside. The respondent otherwise has not proved that the use and occupation charges of the premises comes to ` 2000/- per month. Hence, substantial question of law No. 1 is partly allowed in favour of the appellant whereas substantial question of law No.2 is decided against the appellant. 14. In view of above discussion, the appeal is partly allowed. The impugned judgment and decree dated 29.11.2010 passed by the lower Appellate Court is modified by holding that rate of use and occupation charges is `.500/- per month and not `.2000/- per month, the judgment and decree passed by the Civil Judge (Junior Division) Court No.II, Amb in Civil Suit No. 105/2002 is restored with no order as to costs. All pending applications also stand disposed of. August 2, 2011 ( Kuldip Singh) , (GR) Judge