Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1473 (PNJ)

Rajesh Devan v. Soma Wati Aggarwal

2007-08-10

VINOD K.SHARMA

body2007
Judgment Vinod K.Sharma, J. 1. This Regular Second Appeal has been filed against the judgments and decrees passed by the learned Courts below vide which the suit filed by the plaintiff-respondent for possession has been decreed. The plaintiff-respondent herein filed a suit for ejectment of the appellant from shop Nos. 1 to 5, 14 to 16 and the Hall shown in red in the site plan which formed part of premises No. 126-B, situated at Staff Road, Ambala Sadar/Ambala Cantt. and for the recovery of Rs. 7,500/- being arrears of rent @ Rs. 7,500/- per month, Rs. 37/- per month as Chhajja tax. Rs. 26.36 as interest and a sum of Rs. 40/- on account of costs were also claimed. 2. The plaintiff-respondent claimed to be owner of the premises in dispute which was said to have been taken by the defendant-appellant on rent @ Rs. 7,500/- per month besides other charges. It was claimed that the tenancy of the defendant was terminated by serving a notice under Section 106 of the Transfer of Property Act on 13th of March 1989 calling upon the appellant- defendant to hand over the vacant possession of the demised premises on or before 30th of April 1989. It was also claimed that the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 do not apply to the demised premises which was recently constructed. 3. The suit was contested by the defendant-appellant on the plea that the Civil Court has no jurisdiction to entertain and try the present suit. It was claimed that the suit property was situated within the municipal limits of Ambala Sadar and the Rent Act is applicable. The payment of Chhajja tax was denied. The receipt of notice dated 13th March, 1989 was also denied. It was further claimed that it was neither sent nor served upon the defendant- appellant. It was also claimed that the tenancy of the defendant-appellant has not been terminated. The rent claimed was also denied. It was averred in the reply that due to fire the property in dispute was destroyed and on the asking of the plaintiff and her husband, the defendant-appellant spent money on reconstruction which was to be adjusted out of the rent. It was claimed that a sum of Rs. The rent claimed was also denied. It was averred in the reply that due to fire the property in dispute was destroyed and on the asking of the plaintiff and her husband, the defendant-appellant spent money on reconstruction which was to be adjusted out of the rent. It was claimed that a sum of Rs. 3,19,882/- was spent on the repair and reconstruction of the building and the said amount was to be adjusted towards the rent as per the agreement. It was also claimed that the tenancy was permanent one. It was alleged that the plaintiff had agreed not to eject the defendant-appellant till he continued to pay the rent. 4. Replication was filed in which a plea was also taken that the building was constructed in March 1985. No rejoinder to the replication was filed. 5. On the pleadings of the parties, the following issues were framed :- "1. Whether the respondent is liable to be ejected from the premises in dispute ? OPP 2. Whether the respondent is liable to pay Rs. 7,500/- being arrears of rent at the rate of Rs. 7,500/- ? OPP 3. Whether the respondent is liable to pay Chhajja tax at the rate of Rs. 32/- p.m. ? OPP 4. Whether the respondent is liable to pay mesne profit along with the interest, if any ? OPP 5. Whether the tenancy of the defendant is not terminated validly ? OPD 6. Whether the Civil Court has no jurisdiction to try and entertain the present suit ? OPD 7. Whether the suit of the plaintiff is not maintainable ? OPD 8. Relief." 6. Learned trial Court decided issue Nos. 1, 2, 3 and 4 in favour of the plaintiff-respondent whereas issue Nos. 5 to 7 were decided against the defendant-appellant and accordingly the suit was decreed with costs. It was also ordered that the plaintiff-respondent was further entitled to mesne profits @ Rs. 7,532/- per month with interest @ 12% per annum till final realization of the amount. The decree for possession was also passed. In appeal, the findings recorded by the learned trial Court were affirmed and the appeal filed by the defendant-appellant was dismissed. 7. This appeal came up for hearing before this Court on 23rd October, 2001 when the following order was passed :- "During the course of hearing of this appeal, Mr. M.L. Sarin, Sr. In appeal, the findings recorded by the learned trial Court were affirmed and the appeal filed by the defendant-appellant was dismissed. 7. This appeal came up for hearing before this Court on 23rd October, 2001 when the following order was passed :- "During the course of hearing of this appeal, Mr. M.L. Sarin, Sr. Advocate, appearing on behalf of appellant (defendant) inter alia stated that the shop and the property situated at Staff Road, Ambala Cantt. were constructed much earlier to the year 1980 and were on rent even in the year 1980 with one Bansal Medicos. Mr. Sarin further submitted that one shop was let out to Ashok Kumar son of Kasturi Lal, i.e. much before the construction of shop. In answer to these submissions, Mr. Ashok Aggarwal, Sr. Advocate, appearing on behalf of plaintiff submitted that the shops which were in possession of Bansal Medicos and Ashok Kumar do not form part of the tenancy of the appellant and the submission of Mr. Sarin in this regard is factually incorrect. On going through the record of this case, I find that there is no clear evidence on record either to come to the conclusion that the shops which were let out to Bansal Medicos and Ashok Kumar form part of the tenancy of the appellant or otherwise. There is also no clear evidence that the shop which was let out to Ashok Kumar was newly constructed. In order to determine whether the shops which were let out to Bansal Medicos and Ashok Kumar form part of the tenancy of the appellant and when the same were constructed, it has become necessary to call for a report in this regard from the first appellate Court. Accordingly, the first appellate Court is directed to send report on the points stated above after giving opportunity to the parties to lead evidence in this regard. Report be submitted within six months from the date of appearance of parties before the first appellate Court. Parties through their counsel are directed to appear before the District Judge, Ambala, on 26.11.2001, who may keep the case with herself or entrust it to some other Additional District Judge." 8. In pursuance to the order passed by this Court the parties were given opportunity to lead evidence. The appellant in addition to examining himself as AW-3 also examined Ashok Kumar as AW-1 and Ajay Ahuja as AW-2. In pursuance to the order passed by this Court the parties were given opportunity to lead evidence. The appellant in addition to examining himself as AW-3 also examined Ashok Kumar as AW-1 and Ajay Ahuja as AW-2. The plaintiff-respondent, on the other hand, examined Rakesh Bansal as RW-1 of M/s Bansal Medicos, Dharam Pal, husband of the respondent-plaintiff as her attorney as RW-2. 9. After consideration of the evidence led by the parties, the learned Additional District Judge, Ambala, submitted his report on the questions raised, on 17th April, 2002. The appellant-defendant filed objections against the said report. The learned Additional District Judge while submitting his report also took note of the pleadings of the parties and recorded a finding that there did not seem to be a dispute about the age of the construction of the premises in suit. It was further observed that the defence was tried to be raised by the defendant-appellant much later. It was also observed that it was during the pendency of first appeal that the appellant-tenant tried to lead additional evidence and vide order dated 29th November, 1999 the application moved by the appellant-defendant for additional evidence was allowed. It was observed that on the basis of the concession given by the plaintiff that the said evidence was brought on record, the learned Additional District Judge took note of the following points to return the findings :- "(i) Statement of Dharam Pal (RW-2) that the shop Nos. 1 to 5 as also 14 to 16 in occupation of the appellant have no intervening wall in between and there are lintel beams in between two shops, has not been assailed at all. Had the shop in possession with M/s. Bansal Medicos, been given to the appellant it was to be distinct and separate from the other shops, which is not the case. There is admission of Ashok Kumar (AW-1) that the shop in occupation of Rakesh Bansal of M/s. Bansal Medicos was on the southern side of the main gate. The shops in possession of the appellant Rajesh Dewan, however, are on northern side as admitted by Rajesh Dewan (AW-3). There is admission of Ashok Kumar (AW-1) that the shop in occupation of Rakesh Bansal of M/s. Bansal Medicos was on the southern side of the main gate. The shops in possession of the appellant Rajesh Dewan, however, are on northern side as admitted by Rajesh Dewan (AW-3). Appellant Rajesh Dewan (AW-3) in his cross-examination himself has not been able to pin point as to which of the two shops were already in existence in the year 1980; (ii) Rakesh Bansal of M/s. Bansal Medicos has also stated that the two shops were in existence in the year 1980 and he had taken one shop on rent. He specified that the said shop was on southern side of the main gate. He also pointedly marked point-A regarding the said shop in sanctioned site plan (Ex. P-5). The shops in possession of the appellant are on northern side of the gate; (iii) If sanctioned site plan (Ex. P-5) is studied minutely in relation to deposition of Rakesh Bansal (RW-1) it transpires that the said two old shops are in between shop No. 42 and 43 and are without number in Ex. P-5. There is categorical statement of Rakesh Bansal (RW-1) that he had never occupied one shop out of the shops now in occupation of the appellant. He is also categorical that all the shops except earlier two shops, were constructed after six years of his occupation of the old shops; (iv) Version of Dharam Pal (RW-2), attorney of the landlady that construction of the shops was started from the side of shop No. 63 (as shown in sanctioned plan Ex. P-5) and number-1 was given to the said shop (mentioned as 63 in Ex. P-5) and appellant Rajesh Dewan was the first occupant of the said newly constructed shops without intervening walls, has not been effectively questioned. If Ex. P-5 is taken as such ignoring the numbers given by the landlady as per starting of construction, shop Nos. 63 to 59 and 51 to 48 (taking Ex. P-5 as such) are in occupation of the appellant which as per version of Dharam Pal (RW-1) were given number as 1 to 5 and 14 to 16. No dispute has been raised on this count; (v) These shops are on northern side of the main gate. Main gate is shown in between shop No. 47 and 48. P-5 as such) are in occupation of the appellant which as per version of Dharam Pal (RW-1) were given number as 1 to 5 and 14 to 16. No dispute has been raised on this count; (v) These shops are on northern side of the main gate. Main gate is shown in between shop No. 47 and 48. As already mentioned the two old shops are between the shop Nos. 42 and 43 and these are on southern side as is depicted in (Ex. P-5) as per unassailed statement of Rakesh Bansal (RW-1). (vi) Assessment order of the Municipal Authorities for the year 1983-84 (Ex. P-10) shows only two shops in existence. Only one shop was on tenancy. The annual rental value is also shown to be Rs. 9,600/-. Assessment order (Ex. P- 8) shows that w.e.f. 1.1.1986 such value had been increased to Rs. 1,08,000/-. Rent note in favour of the appellant also shows that the shops had been rented out to the appellant on 1.3.1987; (vii) The landlady had to litigate with the Municipal Committee regarding sanction of her site plan (Ex. P-5). It was sanctioned on 30.10.1980. Later on sanction was withdrawn. The plaintiff had to file a suit for permanent injunction. It was filed on 15.6.1982 and decided on 2.3.1984 (Ex. P-6). The construction was then being raised pursuant to site plan of 3.10.1980 (Ex. P- 5). The civil Court had restrained the Municipal Committee from interfering in the construction being carried out in Banglow No. 126-B, Staff Road, Ambala Cantt., in accordance with the sanctioned site plan. Order of withdrawal of sanction of 20.6.1981 was held to be of no effect. An appeal preferred by the Municipal Committee against the judgment was dismissed on 18.7.1984 (Ex. P-7). (viii) Rent note (Ex. P-9) of shop No. 9 part of the building No. 126-B depicts that the shop was completed in the month of March, 1985." 10. On the basis of above mentioned points, it was held by the learned Additional District Judge that the shop in possession of M/s. Bansal Medicos was an old one whereas the shops in possession of the appellant are newly constructed. It was further held that the shop in possession of M/s. Bansal Medicos never came to be occupied by the appellant. It was further held that the shop in possession of M/s. Bansal Medicos never came to be occupied by the appellant. The learned Additional District Judge also came to the conclusion that the shop in possession of Ashok Kumar was never occupied by the appellant. He also noticed that Ashok Kumar himself admitted that the shop in his possession was constructed in the year 1984. The learned Additional District Judge, therefore, submitted his report to the effect that the shops in possession of M/s. Bansal Medicos and Ashok Kumar never formed part of tenancy of the appellant. 11. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the appellant challenged the findings of the learned Courts below on issue No. 6. It was contended by him that the onus to prove that the suit filed by the plaintiff-respondent was competent and that she was entitled to decree for possession was on the plaintiff which she failed to discharge. In support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Suresh Kumar Jain v. Shanti Swarup Jain and others, 1997(1) RCR(Rent) 411 : 1997(9) SCC 298. However, this contention of the learned senior counsel cannot be accepted for two reasons. Firstly, for the reason onus of proving issue No. 6 was in fact on the defendant-appellant as he had challenged the jurisdiction of the Civil Court to entertain and try the suit. Secondly, sufficient evidence was led by the plaintiff-respondent to show that the building rented out to the appellant-defendant was constructed in March, 1985. It was, thereafter contended by the learned counsel for the appellant that onus to prove that the construction is new was on the landlord and the best evidence for this purpose was the completion certificate and the assessment and once these documents were not produced on record, the suit filed by the plaintiff-respondent was liable to be rejected. 12. Learned senior counsel for the appellant further contended that as the learned Courts below have failed to record a finding as to when the building was completed and what was the extent of rebuilding, as to whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, no decree can be sustained. It was also the case of the appellant that a speculative finding cannot be sustained. However, this contention of the learned senior counsel for the appellant also cannot be accepted and the judgment relied upon by the appellant has no application to the facts of the present case. 13. It may be noticed that the plaintiff-respondent has specifically mentioned the date of construction as March 1985 in the replication which was not controverted. Furthermore, in the present case, the evidence was brought on record to show that the site plan submitted for construction by the plaintiff-respondent was sanctioned on 30th October, 1980 which was subsequently withdrawn. The plaintiff thereafter filed a suit for permanent injunction on 15th June, 1982 which was decided on 2nd March, 1984. Furthermore, Rent Note Ex. P-9 placed on record clearly shows that the shop was completed in the month of March 1985. This date has also to be accepted for the reason that the appeal filed by the Municipal Committee against the judgment and decree of the trial Court was dismissed and, therefore, the order of withdrawal of sanctioned plan was finally set aside on 18th July, 1984 after dismissal of appeal. In the present case, there is sufficient material on record to show that the shop in suit was constructed in the year 1985. The site plan exhibited on the file also shows that the shop in possession of the defendant-appellant was a newly constructed shop which was independent of the shop in possession of M/s. Bansal Medicos. Thus no error can be found with the findings recorded by the learned Courts below holding that the building was newly constructed and, therefore, the provisions of Haryana Urban (Control of Rent and Eviction) Act were not applicable. It cannot be said that best evidence was not produced. 14. Learned senior counsel for the appellant further contended that the shops in possession of appellant-defendant were part of building No. 126-B and once M/s. Bansal Medicos also formed part of the same unit, it has to be held that the whole of the building was old building and, therefore, Civil Court had no jurisdiction to entertain and try the present suit. In support of this contention, reliance was placed on the judgment of this Court in the case of Mangat Ram v. Om Parkash, 1962 PLR 30, wherein this Court was pleased to hold as under :- "The intention of the Government in promulgating the notification issued under Section 3 of the East Punjab Urban Rent Restriction Act, 1949 is to exempt such buildings as are constructed during the year 1956, 1957 and 1958 and let out to tenants. In other words, if a building had been constructed on the entire premises and then let out to a tenant, it would be covered by the notification. Where a part of the premises is constructed during the said period and is let out to a tenant, then that part of the building will be protected by the notification. The definition of "building" covers a part of building let to a tenant. Unit is the building in possession of the tenant though it is only a part of the building. Where a part of the premises was constructed during the said period and the rest already existed and the whole is let to a tenant, the building will not be protected by the notification." 15. However, the reading of this judgment would show that no benefit can be taken by the appellant from judgment, as this Court has been pleased to hold that the building in possession of a tenant as a whole has to be seen and it is not in dispute that the shops in possession of the plaintiff-defendant are those which were constructed in the year 1985 and rented out to him after the construction. The shop with M/s. Bansal Medicos is not part of the shops rented out to the appellant. 16. Learned senior counsel for the appellant thereafter challenged the findings recorded by the learned Courts below on the ground that notice under Section 16 of Transfer of Property Act was not validly issued. This contention is based on the fact that the appellant-defendant had denied his signatures on the acknowledgment produced on record. 17. It is not in dispute that the registered notice was validly sent at the correct address and acknowledgment due was received back and proved on record which was duly exhibited and relied upon by the learned Courts below. This contention is based on the fact that the appellant-defendant had denied his signatures on the acknowledgment produced on record. 17. It is not in dispute that the registered notice was validly sent at the correct address and acknowledgment due was received back and proved on record which was duly exhibited and relied upon by the learned Courts below. The learned counsel for the appellant placed reliance on the judgment of the Honble Supreme Court in the case of M/s. Green View Radio Service v. Laxmibai Ramji and another, 1991(1) RCR(Rent) 54 : AIR 1990 SC 2156, to contend that the legal presumption that the addressee received the letter sent on the correct address is rebuttable and once the defendant-appellant denied his signatures, it was incumbent upon the plaintiff-respondent to have examined the Postman to prove its due service. Para 3 of the judgment relied upon by the learned counsel for the appellant reads as under :- "In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiffs Advocate by registered post acknowledgment due. The acknowledgment signed by the party was received by the Advocate of the plaintiff. Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. The rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The Court in the facts and circumstances of case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post. In the present case, it is an admitted position that the notice sent by registered post had been sent at the proper address. Similar address appeared in the earlier notice given to the defendant and the same is admitted to have been received by the defendant. It has come on record that the defendant proprietor Amarjeet Singh signs his name differently at different times. This is borne out from his signatures on the receipt of summons in the suit, vakalatnama of his former Advocate Mr. Mittal and the written statement in the suit which have been signed by him in English in three different ways. It may be further noted that Amarjeet Singh had deposed that he had paid rent for April 1963 to the Gurkha employee of the plaintiffs but no rent receipt was brought to him. He also produced a copy of letter dated 5th June, 1963 addressed by him to plaintiffs together with a certificate of posting as Ex.-7 Coll. The plaintiffs in this regard did not admit the receipt of this letter and their case was that the copy of letter and certificate of (Ex.-7 Coll.) have fabricated by the defendant of the original written statement. The trial Court while dealing with this matter arrived at the conclusion that the copy of the letter dated 5th June, 1963 and the certificate of posting were not genuine documents and no reliance could be placed upon them. The trial Court while dealing with this matter arrived at the conclusion that the copy of the letter dated 5th June, 1963 and the certificate of posting were not genuine documents and no reliance could be placed upon them. The above matter was also examined by the High Court in detail and it recorded the finding that the appellant (defendant) had made an unsuccessful attempt by inserting on record a suspicious document in order to make out a case of payment of rent for the month of March, 1963. The High Court observed that the learned trial Judge had rightly disbelieved this evidence (sic) above conduct of the defendant goes to show that no reliance can at all be placed on the bald denial of Amarjeet Singh that he did not receive the notice dated 3.9.1963 sent to him by registered post. He was capable of introducing certificate of posting (Ex.-7) in support of his case which was found to be not genuine. As already mentioned above, Amarjeet Singh was signing in different manner and his above conduct of relying on a fabricated document clearly goes to show that no credence can be given to his statement that he had not received the notice in question. In view of these circumstances, we hold that the mere denial by Amarjeet Singh that he did not receive the notice cannot be believed and as such there is no rebuttal of the presumption drawn against him under Section 144 of the Evidence Act." 18. This judgment also does not support the case of the appellant in any manner, as both the Courts below have disbelieved the denial made by the defendant-appellant. Therefore, no error can be found with the said finding. 19. Mr. V.K. Jain, learned senior counsel appearing on behalf of the plaintiff-respondent, contended that the findings recorded by the learned Courts below are not open to challenge in the Regular Second Appeal. Therefore, no error can be found with the said finding. 19. Mr. V.K. Jain, learned senior counsel appearing on behalf of the plaintiff-respondent, contended that the findings recorded by the learned Courts below are not open to challenge in the Regular Second Appeal. Learned senior counsel for the respondent contended that the factum of the shops in dispute having been constructed in March 1985 cannot be disputed in view of the Division Bench judgment of this Court in the case of Salig Ram and another v. Shiv Shankar and others, AIR 1971 P&H 437, wherein it has been held that the replication is part of the pleadings and anything which is specifically stated therein and for the first time, has to be controverted and if the same is not controverted and allowed to pass, it must be assumed that the plea raised in replication was accepted. The contention of the learned senior counsel for the plaintiff-respondent was that in the replication the plaintiff had specifically mentioned that the building was constructed in March, 1985. There was no rebuttal to the said statement and, therefore, the findings of the learned Courts below are based on uncontroverted pleadings, which are not open to challenge. 20. Learned senior counsel for the plaintiff-respondent also placed reliance on the judgment of the Honble Supreme Court in the case of M/s. Madan and Co. v. Wazir Jaivir Chand, 1988(2) RCR(Rent) 654 : AIR 1989 SC 630 to contend that if the landlord sends a notice correctly addressed to the tenant by registered post, it has to be held that the statutory requirement stands complied with. The contention of the learned senior counsel was that in the present case, the plaintiff-respondent had proved on record the notice as well as the acknowledgment due which was received back by the plaintiff. However, I need not go into all these points as the learned Courts below have recorded a concurrent finding of fact that the building was newly constructed to which the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973, were not applicable. The learned Courts below have also held that the tenancy of the defendant-appellant was validly terminated and, therefore, the suit for possession has been decreed. 21. The learned Courts below have also held that the tenancy of the defendant-appellant was validly terminated and, therefore, the suit for possession has been decreed. 21. In view of the concurrent findings of fact recorded above and in view of the arguments raised by the learned counsel for the parties, no substantial question of law arises for consideration in this appeal. As the concurrent findings of fact are not open to challenge in the Regular Second Appeal, consequently, this appeal is dismissed in limine. 22. Learned senior counsel for the appellant made a request that the appellant may be granted six months time to vacate the demised premises as he is required to make alternative arrangement. This prayer of the appellant is accepted and he is granted six months time to vacate the demised premises and handover the vacant possession to the plaintiff-respondent. However, this shall be subject to filing an affidavit by the appellant to the following effect in this Court within one month from the date of this order :- (i) That the appellant shall vacate the tenanted premises and hand over the vacant possession to the plaintiff-respondent on or before 9th of February, 2008. (ii) That the appellant shall clear all arrears of rent due and continue to pay rent to the plaintiff-respondent by 7th of each month in advance during this period.