R. S. A. No. 312 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 312 of 2011 (O&M) Date of Decision : January 20, 2011 Tejinder Pal Singh .... Appellant Vs. Municipal Corporation, Jalandhar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Mansur Ali, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 864-C of 2011 : Allowed as prayed for. C. M. No865-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 19 days in filing the appeal is condoned. Main Appeal : Plaintiff Tejinder Pal Singh having failed in both the courts below is in second appeal. Plaintiff's case is that disputed shop no.1 was leased out by R. S. A. No. 312 of 2011 (O&M) 2 defendant Municipal Corporation, Jalandhar to the plaintiff prior to the year 1979 at ₹ 800/- per month rent. Security amount of ₹ 9,600/- deposited by the plaintiff is still lying deposited with the defendant. The plaintiff has paid the rent regularly since inception of tenancy at the agreed rate. However, the defendant has issued notice dated 06.01.2005 demanding ₹ 1,00,297/- from the plaintiff as arrears of rent till 30.11.2004. The said demand has been challenged in the suit alleging it to be against principles of natural justice and therefore, illegal and null and void. The demand has been made on the basis of enhancement of rent @ 20% with retrospective effect, and therefore, demand is bad. Accordingly, the plaintiff sought mandatory injunction directing the defendant not to raise any demand for arrears of rent, as contained in the impugned notice dated 06.01.2005 and directing the defendant to withdraw the said notice being illegal etc. and the defendant is not entitled to recover the disputed amount or to enhance the rent nor the plaintiff is under obligation to pay the same. The defendant broadly denied the plaint allegations. It was denied that the disputed shop was ever given on lease to the plaintiff by the defendant prior to the year 1979. On the contrary, the shop was given on lease to Joginder Singh (plaintiff's father) @ ₹ 800/- per month for five years in auction held on 22.11.1979. Joginder Singh took possession of the shop on 05.12.1979. The lease period was from 05.12.1979 to 04.12.1984. R. S. A. No. 312 of 2011 (O&M) 3 After expiry of said lease period, Joginder Singh requested for extension of lease period, which was extended for three years from 05.12.1984 to 04.12.1987 with 20% increase in lease money i.e. @ ₹ 960/- per month. Letter to this effect was sent to Joginder Singh. The licensee has not paid the lease money regularly on time. Deposit of security money is matter of record. Licensee has not paid the lease money at the agreed rate and the suit amount, being arrears of lease money, is yet to be deposited by the licensee. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jalandhar, vide judgment and decree dated 15.12.2008, dismissed the suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Fast Track Court, Jalandhar, vide judgment and decree dated 10.08.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff's case is that the shop was rented out to him by the defendant. However, the defendant's case is that the shop was rented out to Joginder Singh. The plaintiff, in the witness-box, himself admitted that the shop had been let out to his father Joginder Singh. The defendant has led evidence to prove that while extending the lease period after 04.12.1984, it was extended with increase of rent @ R. S. A. No. 312 of 2011 (O&M) 4 20%. Documentary evidence to this effect has been proved by the defendant. Further extension of lease up to 04.12.1990 was again at enhanced rate. Plaintiff's father or the plaintiff himself never objected to the enhancement of rent, while the lease period was extended. Consequently, the plaintiff now cannot turn around and contend that he is not liable to pay enhanced rent. Many demand notices were issued to the tenant even prior to impugned notice dated 06.01.2005, but even at that stage, no objection was raised. When lease period was extended for the second time from 05.12.1987 to 04.12.1990, again there was enhancement of rent. The tenant continued to occupy the shop without raising any objection with regard to enhanced rent. Consequently, it cannot be said that the plaintiff is not liable to pay enhanced rent, as demanded by the defendant. It has come in evidence that after expiry of lease period of three years, every time Joginder Singh used to request for extension of lease period, which was usually extended for further three years with further increase in rate of rent @ 20% over the previous lease money. Even the plaintiff has admitted this fact in his cross-examination. However, no objection was ever raised by the plaintiff or his father to the said enhancement. Consequently, demand by defendant for enhanced rent is fully justified and cannot be said to be illegal or null and void in any manner. Learned counsel for the appellant vehemently contended that R. S. A. No. 312 of 2011 (O&M) 5 appellant had moved application (Annexure P-1) in the lower appellate court for additional evidence, but the said application has not been decided by the lower appellate court and therefore, the matter is required to be remanded to the lower appellate court for fresh decision of the appeal along with application for additional evidence. Reliance in support of this contention has been placed on judgment of this Court in the case of Ashok Kumar vs. Surinder Kumar reported as AIR 2005 Punjab and Haryana 263. I have carefully considered the aforesaid contention, which, on first blush, appears to be very forceful, but in fact, the same cannot be accepted. The plaintiff-appellant, by way of additional evidence, wanted to produce some receipts depicting payment of various amounts to the defendant. Learned counsel for the appellant contended that the amounts so paid by the plaintiff through the aforesaid receipts have not been credited or adjusted by the defendant, while demanding the disputed amount. The contention is completely untenable because no such plea has even been raised by the plaintiff-appellant in the pleadings. On the contrary, the only dispute raised by the plaintiff in the plaint is regarding enhancement of rate of rent. However, as already discussed herein before, enhancement of rent, as claimed by the defendant, is fully justified. The proposed additional evidence being beyond pleadings cannot, therefore, be admitted in evidence. R. S. A. No. 312 of 2011 (O&M) 6 Consequently, mere omission by the trial lower appellate court to decide the application for additional evidence has not resulted in miscarriage of justice in the instant case because the proposed additional evidence, being beyond pleadings and therefore being irrelevant, cannot be admitted in evidence. There is concurrent finding by both the courts below holding that the plaintiff is liable to pay enhanced rent, as demanded by the defendant. The said finding is fully justified by the documentary evidence led by the defendant and is supported by cogent reasons. Accordingly, the said finding does not warrant any interference in this second appeal as it cannot be said to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. January 20, 2011 ( L. N. MITTAL ) monika JUDGE