RSA No.1967 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1967 of 2010 Decided on : 24.08.2010 Varinder Kumar ... Appellant versus Gopal Singh ... Respondent CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present : Mr. Navdeep Chhabra, Advocate for the appellant. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? *** RAKESH KUMAR GARG, J. This is defendant-appellant's second appeal challenging the judgment and decree of the courts below whereby the suit of the plaintiff-respondent for mandatory injunction directing the appellant to hand over the vacant possession of the portion of tenanted shop as detailed in the headnote of the suit for the purpose of raising construction of stairs upto the roof to be used as an approach to the first floor of the suit property was decreed. In nutshell the case of the plaintiff-respondent is that he is owner/landlord of the shop in dispute. On 15.09.1989, the appellant took the aforesaid shop on rent @ Rs.1000/- per month from him and executed a rent agreement in the presence of witnesses, and also paid a sum of Rs.1000/- as rent for period of one month to the plaintiff- respondent. Since then the appellant was in possession of the shop in question as tenant. As per the terms and conditions of the agreement, RSA No.1967 of 2010 -2- appellant agreed to surrender the possession of portion of the shop measuring 2¼ feet in width to the plaintiff-respondent for the purpose of raising the construction of staircase to be used as an approach to the first floor. When the plaintiff-respondent wanted to raise the construction of first floor over the shop in dispute, he got the site plan for the aforesaid construction sanctioned from the Municipal Authorities and approached the defendant-appellant to hand over the vacant possession of the portion of the shop as aforesaid. However, the appellant on one pretext or the other did not do so whereupon the respondent served a registered AD notice dated 26.03.1998 to the appellant but to no effect, as such, necessity arose to file the present suit. Upon notice, appellant appeared and filed written statement taking various preliminary objections. On merits it was admitted that plaintiff-respondent was the landlord qua the shop in dispute. It was also admitted that the appellant had taken the shop in dispute on rent from the respondent @ Rs.1000/- per month. However, the appellant never agreed to surrender the possession of any portion of the demised shop for any purpose as alleged. In fact the appellant was made to sign the writing, which was neither scribed at his instance nor read over or explained to him. Since the appellant was in dire need of the premise and as such, the respondent dictated the terms to him and obtained his signatures on the alleged writing without his knowledge about the contents of the said writing. The alleged conditions in the writing was illegal and unenforceable. The plaintiff-respondent has no right to construct a chaubara over the shop in dispute. Rest of the averments made in the plaint were denied with a prayer to dismiss the suit. RSA No.1967 of 2010 -3- From the pleadings of the parties, the following issues were framed by the trial court: (i)Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP (ii)Whether the plaintiff has nor right to the file the present suit? OPD (iii)Whether the suit is not maintainable? OPD (iv)Relief. Parties led evidence in support of their respective case. After hearing learned counsel for the parties and perusing the record, the trial court decided all the issues in favour of the plaintiff- respondent and decreed the suit. Feeling aggrieved from the aforesaid judgment and decree of the trial court, the appellant filed an appeal in the lower appellate court, which was also dismissed vide impugned judgment and decree dated 18.02.2010. It may also be relevant to notice that while dismissing the appeal, the lower appellate court on appreciation of evidence recorded a finding of fact that appellant had admitted his signatures on the rent agreement (Ex.P-1) and it was also an admitted fact, that vide this document, appellant was inducted as a tenant and therefore it was not open to the appellant to contend that he did not know the contents of the aforesaid document, which was to be read as a whole and once the appellant admitted his signatures on the said agreement, it cannot be even presumed that the contents of the same were not read over to him. Moreover, there is no evidence on record to support the plea of the appellant that he was made to sign the aforesaid agreement under pressure. RSA No.1967 of 2010 -4- Still not satisfied with the aforesaid judgment and decree, the appellant has approached this Court by way of instant appeal submitting that the following substantial question of law arises in this appeal: (i)Whether suit for mandatory injunction directing the appellant/ defendant to hand over vacant possession of portion of shop is maintainable especially when relationship of tenant and landlord is not disputed between the parties and also when the demised shop is situation in the area where Rent Act is applicable? And whether the jurisdiction of the civil court is not barred in the present case? (ii)Whether the action of respondent by filing different cases including an eviction petition under Rent Act and suit for mandatory injunction simultaneously regarding the same shop is not abuse of process of court? And if yes, whether the respondent is entitled to equitable relief of injunction? (iii)Whether the respondent is entitled to relief of injunction especially in the light of S. 41(h) of The Specific Relief Act? (iv)Whether the suit for mandatory injunction filed by the respondent/plaintiff is essentially a suit for possession only? If yes, whether the plaint deserved to be rejected for want of proper court fee and whether a plea of deficient court fee can betaken at this stage? (v)Whether the courts below are justified in relying upon photocopy of the original document (Ex. P-1) as a RSA No.1967 of 2010 -5- secondary evidence especially when the existence and loss of such document are not properly explained by the respondent/plaintiff? (vi)Whether the document Ex-P1 can be relied upon without strictly proving it under the Provisions of Law as prescribed under Sections 63 to 73 of Indian Evidence Act? In support of this appeal, learned counsel for the appellant has vehemently argued that both the Courts below have failed to appreciate that before receiving secondary evidence under Section 65 of Indian Evidence Act on account of loss of its original, a proper explanation of the absence of the original has to be given. Since the loss of the aforesaid document was not explained, secondary evidence was not permissible and, thus, the judgment and decree of the courts below being based upon evidence, are liable to be set aside. Learned counsel for the appellant also argued that agreement in question was never executed between the parties nor its execution was duly proved during trial. Moreover, its original was never brought on record and only a photocopy of such document was produced and permission to lead secondary evidence was obtained. The existence of such document and its loss was never properly proved and the Courts below also overlooked the settled law that permission to lead secondary evidence does not dispense the proof of existence and execution of the document. Learned counsel for the appellant further argued that the relief of injunction is equitable relief. The courts below have overlooked the fact that on one hand the respondent was invoking the jurisdiction of civil court by filing civil suit and on the other hand he had filed rent petition under the provisions of Rent Act for eviction of RSA No.1967 of 2010 -6- the appellant on the ground of personal necessity etc. The Courts below have not discussed the aforesaid question and its consequential effects. On the basis -of the aforesaid argument, learned counsel for the appellant submits that the substantial questions of law as aforesaid arise in this appeal and the judgment and decree passed by the courts below are liable to be set aside. I have heard learned counsel for the appellant and perused the judgment and decree of the courts below. The argument raised by the learned counsel for the appellant are noticed only to be rejected. It is not in dispute that the plaintiff-respondent was granted permission by the court to prove the rent agreement Ex.P-1 by way of secondary evidence and the aforesaid order permitting the respondent to prove the said document by leading secondary evidence was never challenged by the appellant. Not only this, learned counsel for the appellant has failed to point out any discussion advanced before the courts below in this regard. In case the appellant had raised this issue before the trial court and the same was not accepted , the appellant could have raised the same before the lower appellate court by pointing out the argument in this regard. However, no such argument was raised before the lower appellate court. Even the next argument of the appellant that civil court had no jurisdiction to grant mandatory injunction because of the fact that respondent had approached the Rent Controller for eviction of the appellant is without any merit as the respondent is well within his right to enforce his civil right in order to get implemented the agreement in question. The eviction of the appellant on the ground of personal necessity etc. under the provisions of Rent Act is an independent remedy under specific statute and the same cannot come within the RSA No.1967 of 2010 -7- way of the plaintiff-respondent for enforcement of his civil right flowing from the document Ex.P-1 in question. The argument of the learned counsel for the appellant that the lower appellate court has not discussed the aforesaid argument on the basis of eviction application Ex.D-4 is wrong as the lower appellate court has held that the civil court had the jurisdiction to issue the mandatory injunction to enforce the civil right of the respondent. Thus, in view of the aforesaid discussion, I find no merit in this appeal. No other point was argued. Nor any judgment was cited. The judgment referred in the grounds of appeal are not applicable in the facts and circumstances of the case. No substantial question of law arise in this appeal. Dismissed. August 24, 2010 (RAKESH KUMAR GARG) sonia JUDGE