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2000 DIGILAW 806 (PNJ)

S. Rattan Singh v. Bal Kishan

2000-07-27

V.K.JHANJI

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Judgment V.K.Jhanji, J. 1. This is defendants second appeal directed against the judgment and decree of the Courts below decreeing the suit of the plaintiff for possession by way of ejectment in respect of suit property. 2. In brief, the facts are that the plaintiff (respondent herein) filed suit against the defendant (appellant herein) for his ejectment in respect of shop situated in Abadi Deh of Village Fatehpur Tehsil Kaithal after terminating the tenancy by serving notice under Section 106 of the Transfer of Property Act. Upon contest by the defendant, suit of the plaintiff was decreed by the trial Court. Defendant filed appeal but the same was also dismissed by the Additional District Judge, Kaithal. Hence this second appeal by the defendant. 3. The only contention urged by the learned counsel for the defendant is whether the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 are applicable to the premises is dispute. In the trial Court, case of the defendant was that the civil suit is not maintainable because the shop falls within the urban area and, therefore, the provisions of Haryana Act No. 11 of 1973 apply to the premises. 4. On the other hand, case of the plaintiff was that the shop does not fall within the urban area. Plaintiff, in order to prove that the shop does not fall within the urban area, examined PW-1 Jai Bhagwan, Clerk of Municipal Committee, Pundri who on the basis of the record, submitted that the shop in question does not fall within the limits of Municipal Committee, Pundri. PW-2 Jeet Ram, Kanungo, Pundri submitted that the shop falls in Khasra No. 649 and the same falls within the jurisdiction of Village Fatehpur. Defendant, apart from giving his own statement that the shop in question falls within the limits of Municipal Committee, did not lead any evidence to prove that the shop falls within the municipal limits of Pundri. Trial Court as also the first Appellate Court, on the basis of statements of PW-1, PW-2 and the statement of plaintiff, held that the provisions of the Act do not apply to the shop in question because the same does not fall within the municipal limits of Pundri. 5. This appeal was admitted on 25.1.1994 because vide Notification No. 12/3/78-2CI dated 20.1.1989, the shop in question had come within the municipal limits of Municipal Committee, Pundri. 5. This appeal was admitted on 25.1.1994 because vide Notification No. 12/3/78-2CI dated 20.1.1989, the shop in question had come within the municipal limits of Municipal Committee, Pundri. Trial Court as also the first Appellate Court had not given any effect to the notification because the same was under challenge in CWP No. 3218 of 1989 and in the said writ petition, operation of the notification has been stayed. At the time when second appeal came up for hearing, the writ petition in which the said notification was under challenge, came to be decided on 28.5.1997 by a Division Bench of this Court in terms of decision rendered in L.P.A. No. 681 of 1995. The L.P.A. Bench had upheld the vires of the notification. In view of the judgment dated 28.5.1997 upholding the vires of the notification, the appeal was admitted. However, Haryana Government, vide Notification dated 14.7.1999 has withdrawn notification No. 12/3/78-2CI dated 20.1.1989. The notification reads as under :- "The Governor of Haryana is pleased to withdraw the Notification issued vide No. 12///3/78-2CI dated 20.1.1989 regarding Limits of Municipal Committee, Pundri. Sd/- M.K. Miglani Financial Commissioner & Secy. to Govt., Hry., Local Government Department. 6. On withdrawal of the notification, the shop in question which had come within municipal limits vide notification dated 20.1.1989 has ceased to be within the municipal limits. The stand of the defendant that the shop in dispute has come within the municipal limits of Pundri vide notification dated 20.1.1989, no more survives because of the withdrawal of the notification by the Government. This being the position, this appeal deserves to be dismissed. It is so ordered. No costs.