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2009 DIGILAW 1286 (PNJ)

Ramesh Chand v. Om Parkash

2009-08-03

SABINA

body2009
JudgmentJudgment Sabina, J. 1. Plaintiff - Om Parkash and Shiv Narain had filed a suit for possession by way of ejectment. Additional Civil Judge ( Senior Division), Jind vide judgment and decree dated 16.6.2000 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was allowed by District Judge, Jind vide judgment and decree dated 23.6.2006. Hence, the present appeal by the defendants 2. The facts of the case as noticed by the learned District Judge, in paras 1 to 3 of its judgment read as under:- "Om Parkash and Shiv Narain sons of Des Raj brought a suit for ejectment of defendants Rmesh Chand son of Wazir Chand and Harans Lal son of Uttam Chand from a shop situate near Ghanta Ghar, Jind, as described in the head note of the plaint. As per averments in the plaint, the shop in question was originally let out to the defendants by Shanti Devi, the mother of the plaintiffs, through her husband Des Raj and after her death an oral partition took place on 10.4.1988 between the legal heirs of Shanti Devi whereby this shop fell to the share of the plaintiffs exclusively and a memorandum of partition was prepared on 22.4.1988. On the basis of partition, a decree was also passed in their favour by the Civil court on 28.4.1988. In this way, the title of the plaintiffs as owners and as landlords was undisputed and the defendants occupied the demised premises as tenants under the plaintiffs till their tenancy was terminated by a notice dated 3.5.1988 sent by the plaintiffs through their counsel and which had been served on defendant Ramesh Chand by registered post on 4.5.1988. Vide that notice the defendants were required to vacate the demised premises after expiry of clear 15 days from the date of service. Cause of action arose on 20.5.1988 for eviction when the defendants failed to vacate the demised shop and failed to pay arrears of rent from 1.4.1988 to 20.5.1988 at the rate of Rs. 970/- per month amounting to Rs. 1,616- 67 paise and for mesne profits from 21.5.1988 to 24.5.1988 at the rate of Rs. 60/- per day amounting to Rs. 240/-. 970/- per month amounting to Rs. 1,616- 67 paise and for mesne profits from 21.5.1988 to 24.5.1988 at the rate of Rs. 60/- per day amounting to Rs. 240/-. The disputed shop having been constructed and completed by 11.10.1978, the same is exempt for 10 years from the purview of Haryana Urban (Control of Rent and Eviction)Act, 1973 and, as such, Civil court has got jurisdiction in the matter. The plaintiffs prayed for a decree for possession of the disputed shop and for recovery of Rs. 1,616- 67 paise as arrears of rent and damages/mesne profits from 21.5.1988 to 24.5.1988 amounting to Rs. 240/- and also made prayer for damages/mesne profits at the rate of Rs. 60/- per day from the date of institution of the suit till the date of recovery of possession with interest. In his written statement, defendant No. 1 Ramesh Chand controverted the case of the plaintiffs. He admitted that the defendants had taken a shop on rent from Shanti Devi through her husband on a monthly rent of Rs. 700/- but asserted that the boundaries of the shop described in the plaint are not correct. He was not aware about the death of Shanti Devi and the alleged partition among her legal heirs and about the passing of a decree by the court in favour of the plaintiffs on 28.4.1988. Defendant No. 1 averred that all the legal heirs of deceased Shanti Devi have not been made party to the suit and the suit is, thus, had on account of non-joinder of necessary parties. According to him, no notice of termination of tenancy was served on him. He pleaded that there is no question of termination of tenancy on 3.5.1988 when Des Raj (father of the plaintiffs) had already received rent on 20.2.1988 for the period 1.1.1988 to 31.5.1988. It was also disclosed in the written statement of defendant No. 1 that initially the rate of rent of the shop in dispute was Rs. 700/- and due to pressure of Des Raj and imposition of house-tax, it was enhanced to Rs. 970/- (including house-tax). Defendant No. 1 asserted that the defendants are still occupying the demised shop as tenants and are always ready and willing to pay rent from 1`.6.1988 onwards to the lawful owners/claimants. 700/- and due to pressure of Des Raj and imposition of house-tax, it was enhanced to Rs. 970/- (including house-tax). Defendant No. 1 asserted that the defendants are still occupying the demised shop as tenants and are always ready and willing to pay rent from 1`.6.1988 onwards to the lawful owners/claimants. It is also the stand of defendant No. 1 that construction of the shop was not completed on 11.10.1978 as alleged in the plaint. His version is that period of 10 years had expired much before filing of the suit and only the Rent Controller has jurisdiction in this matter and jurisdiction of civil court is barred. In addition, defendant No. 1 raised a plea that the suit is not maintainable in the present form." 3. On the pleadings of the parties, trial court framed the following issues on 15.9.1989 :- "(1)Whether the plaintiffs are the owners of the shop in dispute, as alleged? OPP (2)Whether the construction of the shop in dispute was completed by 11.10.1978, as alleged? OPP (3)Whether the tenancy of the defendants stood terminated by a valid notice dated 3.5.1988? OPP (4)Whether the Civil Court has no jurisdiction in the matter ? OPD (5)Whether the suit is bad for non-joinder of parties? OPD (6)Whether the suit is not maintainable in the present form? OPD (7)Relief". 4. The following additional issues were framed by the learned trial court on 6.2.1990 :- 6(A) Whether the defendants are in arrears of rent of Rs. 1616.67 for the period from 1.4.1988 to 20.5.1988 @ Rs. 970/- per month and whether the plaintiffs are entitled to recover this amount from the defendants? OPP 6(B) Whether the defendants have paid the rent of the premises in question to Des Raj upto 31.5.1988, if so, its effect? OPD 6(C) Whether the plaintiffs are entitled to recover mesne profits of the period from 21.5.1988 to 24.5.1988 amounting to Rs. 240/- at the rate of Rs. 60/- per day? OPP 6(D) Whether the plaintiffs are entitled to mesne profits/damages at the rate of Rs. 60/- per day from the date of the suit till the delivery of the possession along with interest at the rate of 12% per annum as alleged in the plaint? OPP 5. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. 6. 60/- per day from the date of the suit till the delivery of the possession along with interest at the rate of 12% per annum as alleged in the plaint? OPP 5. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. 6. Plaintiff had filed a suit for ejectment of the defendants from the shop in dispute after serving a notice under Section 106 of the Transfer of Property Act, 1882( hereinafter referred to as ."the TP Act"). The case of the plaintiff was that the Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter referred to as ."the Rent Act"), was not applicable to the facts of the present case as the suit for ejectment had been filed within a period of 10 years from the completion of the shop. 7. On the other hand, case of the defendants was that the suit instituted was not maintainable and the only remedy available to the plaintiff was to approach the Rent Controller for eviction as a period of 10- years had already elapsed from the completion of the shop in question. 8. The case of the plaintiff was that the shop in question was competed in October, 1978 and was rented out in the same month to the defendants. Ex. PX is the rent note executed between the parties Defendant No. 1-Ramesh Chand while appearing in the witness box did not deny his signatures on the rent note Ex. PX. He had also admitted that the rent note had been executed when he had taken the shop in dispute on rent and the rate of rent was Rs. 700/- per month with effect from 18.10.1978. 9. A perusal of the rent note Ex. PX reveals that the shop in question was a newly constructed shop which was given on rent to the defendants. Building plans Exs. PW-3/A and PW-3/B also reveal that the shop in question was constructed after getting the building plans sanctioned from the Municipal Committee. As per the endorsement, the sanction was made on 6.7.1978. In these circumstances, courts below had rightly held that the suit had been filed within 10 years of competition of shop in question as such the provisions of the Rent Act were not applicable. Notice Ex. As per the endorsement, the sanction was made on 6.7.1978. In these circumstances, courts below had rightly held that the suit had been filed within 10 years of competition of shop in question as such the provisions of the Rent Act were not applicable. Notice Ex. P-7 was duly served upon the defendants in terms of Section 106 of the TP Act. No reply was ever furnished by the defendants to the said notice. 10. Honble the Apex Court in the case of Kishan alias Krishan Kumar etc. v. Manoj Kumar etc. AIR 1998 Supreme Court 999 has held as under:- "There is no provision in the Act taking away the jurisdiction of a Civil Court to dispose of a suit validly instituted. There is also no provision preventing the execution of a decree passed in such a suit. Section 13(1) does not expressly refer to execution of a decree for possession. On a reading of all the provisions of the Act, it is evident that it has not prevented a Civil Court from adjudicating the rights accrued and the liabilities incurred prior to the date on which the Act became applicable to the building in question. If the Legislature had intended to take away the jurisdiction of the Civil Court to decide a suit which had been validly instituted, it would have been worded differently. The purpose for which the exemption is granted statutorily under Section 1(3) is to encourage construction of new building. That purpose would be defeated if the owner of the building is deprived of his right to get possession of the building unless he get a decree within a period of ten years from the date of its completion. In fact the logical consequence of the argument of the appellants if accepted would be that even if a decree is obtained by the landlord within ten years from its completion it cannot be executed after the expiry of the said period of ten years as such execution would not be in accordance with the provisions of the Act. It is common knowledge that a proceeding in a Civil Court for recovery of immovable property could be dragged on by the defendant easily for a period of ten years or more and thereby any tenant whose tenancy had been terminated validly before the suit would successfully make the proceeding infructuous by prolonging the litigation. It is common knowledge that a proceeding in a Civil Court for recovery of immovable property could be dragged on by the defendant easily for a period of ten years or more and thereby any tenant whose tenancy had been terminated validly before the suit would successfully make the proceeding infructuous by prolonging the litigation. The argument of the appellants cannot be accepted as otherwise the purpose of exemption would get defeated. Thus it is seen that this Court has been consistently taking the view that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption came to an end during the pendency of the suit. The only discordant note was struck in Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352: (AIR 1985 SC 817). We have noticed that several decisions subsequent thereto have held that Vineet Kumar is not good law. We have already construed the relevant provisions of the Act and pointed out that there is nothing in the Act which prevents the Civil Court from continuing the suit and passing a decree which could be executed." No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed.