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2012 DIGILAW 1199 (PNJ)

Pooja Chauhan v. Pritam Lal Sharma

2012-09-13

M.Jeyapaul

body2012
JUDGMENT Mr. M. Jeyapaul, J.:- The unsuccessful defendant who was ordered to vacate the suit premises in the suit for eviction filed by the plaintiff has come forward with the present second appeal. 2. The plaintiff has contended in the plaint that second floor of House No.7, Sector 16, Panchkula was let-out to the 1st defendant on a monthly rent of Rs. 2800/- excluding electricity and water charges w.e.f. 29.9.2003. A criminal case in FIR No.238 dated 2.5.2004, was registered as the defendants did not make payment and started creating nuisance. As the defendants did not prove themselves to be of good tenants, the plaintiff terminated their tenancy vide notice dated 8.10.2004, under Section 106 of the Transfer of Property Act. The plaintiff has sought for possession, recovery of arrears of rent and mesne profits. 3. The defendants resisted the suit contending that the civil Court has no jurisdiction to entertain and try the present suit, inasmuch as the defendants are entitled to the protection extended to the tenants under the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as ‘the Act’). The defendants prayed for dismissal of the suit with costs. 4. Referring to the building plan Ex.P2 dated 6.7.1987, the Occupation Certificate Ex.P15/A and revised plan Ex.P3 which was sanctioned on 29.3.1996, both the Courts have held that the plaintiff who had put up construction of basement, ground floor and first floor as on 7.7.1987, in terms of the original plan sanctioned on 2.12.1984, as referred to in the subsequent building plan Ex.P2 dated 6.7.1987, put up the entire second floor let-out to the 1st defendant only after the plan sanctioned under Ex.P3 dated 29.3.1996. Since the suit for eviction was filed on 25.11.2004, before the expiry of 10 years from the date of construction of the second floor, it is very well maintainable. 5. This Court while admitting the appeal framed the following substantial question of law:- “1. Whether the addition of second floor constructed in a building can be construed to be a ‘Building’ for the purpose of applicability of Section 1(3) of the Haryana Urban (Control of Rent & Eviction) Act, 1973.” 6. Learned counsel appearing for the appellant/1st defendant would submit that the term ‘Building’ as per the Act would mean the entire building. Whether the addition of second floor constructed in a building can be construed to be a ‘Building’ for the purpose of applicability of Section 1(3) of the Haryana Urban (Control of Rent & Eviction) Act, 1973.” 6. Learned counsel appearing for the appellant/1st defendant would submit that the term ‘Building’ as per the Act would mean the entire building. The additional block constructed in an existing structure cannot be construed as a Building as per the Act. 7. Per contra, learned counsel appearing for respondent No.1/plaintiff would submit that even a part of a building constructed separately and let-out to a tenant will have to be construed as a Building as per the definition of Section 2(a) of the Act. Inasmuch as, it has been established before the trial Court that the entire second floor was constructed by the plaintiff only after the sanctioned plan was obtained under Ex.P3 on 29.3.1986, the suit filed on 25.11.2004, before the expiry of 10 years from the date of construction of the second floor let-out to the 1st defendant is maintainable. 8. Section 1(3) of the Act would read that nothing in the Act shall apply to any building, the construction of which is completed after the commencement of the Act for the period of 10 years from the date of its completion. The above provision of law would make it clear that the benevolent Act in favour of the tenants would not apply to a building which has not completed 10 years from the date of its completion. 9. Section 2(a) of the Act which defines ‘Building’ would make it clear that the term ‘Building’ would not only mean a building in its entirety, but also a part of the building let-out for any purpose. If we give a joint reading of Section 1(3) and 2(a) of the Act, a ‘Building’ contemplated under Section 1(3) of the Act would include a part of the building let-out also. If a part of the building is constructed and let-out, the benevolent provisions of the Act would not apply for 10 years from the date of completion of construction of such a part of the building. 10. In the instant case, the entire second floor of the building has been newly built as per the sanctioned plan Ex.P3 dated 29.3.1996 and letout to the 1st defendant. 10. In the instant case, the entire second floor of the building has been newly built as per the sanctioned plan Ex.P3 dated 29.3.1996 and letout to the 1st defendant. The eviction suit was filed on 25.11.2004 before the expiry of 10 years from the date of its completion. Therefore, the Haryana Urban (Control of Rent & Eviction) Act, 1973 would not apply to the subject premises. 11. In a case where only a part of the entire portion which was rented out has been newly built up, the owner of the building cannot claim exemption on the ground that such a construction has been made within 10 years from the date of filing the suit for eviction. 12. Learned counsel appearing for the appellant cited a decision of this Court in Sardar Singh vs. Smt. Champa, 1998(1) RCR (Rent) 205, wherein it has been observed that additions, improvements or alterations may amount to construction, but cannot be said with any reasonableness that the same would amount to construction of a building. 13. In the aforesaid decision, it has been made clear that when a portion of the building is taken out for rent, any partial construction made in such portion would not amount to construction of a building. 14. In the instant case, the entire second floor as a separate unit has been let-out to the 1st defendant after putting up new construction of the entire second floor portion. In view of the above, the aforesaid decision would not apply to the facts and circumstances of this case. I hold that the second floor constructed and let-out to 1st defendant would be considered as a Building for the purpose of Section 1(3) of the Act. 15. Learned counsel appearing for the appellant would submit that that the construction of the second floor was not established before the trial Court by the plaintiff. I do not find any force in the submissions made by learned counsel appearing for the appellant, inasmuch as the plaintiff has established that second floor was constructed only after the sanction was obtained under Ex.P3 dated 29.3.1996. Ex.P2 dated 6.7.1987 and Ex.P15/A dated 7.7.1987 would go to establish that Ex.P2 is only a revised plan and the original plan was already obtained on 2.12.1984. Ex.P2 dated 6.7.1987 and Ex.P15/A dated 7.7.1987 would go to establish that Ex.P2 is only a revised plan and the original plan was already obtained on 2.12.1984. Having got an approval for deviation for the basement, ground floor and first floor through the revised plan, occupation certificate had been obtained by the plaintiff on 7.7.1987 under Ex.P17A. It has been demonstrated that the plaintiff originally built only basement, ground floor and first floor as evidenced by the Occupation Certificate Ex.P15/A. Ex.P3 dated 29.3.1996 the sanction plan obtained by the plaintiff would indicate that the said sanctioned plan was obtained only for putting up the second floor construction. Admittedly, second floor construction was newly made by the plaintiff and the same was let out to the 1st defendant. In my view, there is no perverse finding recorded by the trial Court as regards the second floor constructed by the plaintiff under the sanctioned plan Ex.P3 dated 29.3.1996. 16. It was contended that Ex.P15/A was a photostat copy which was stealthily inserted as a part of record before the trial Court. Firstly, there was no objection raised by the 1st defendant while the said document was marked on the side of the plaintiff. At this distance of time, it is very difficult to fathom the circumstances under which a photocopy of Ex.P15/A was marked. If at all any objection was raised to mark Ex.P15/A, the trial Court would have definitely answered the objection raised. The 1st defendant cannot for the first time plead before this Court that a photocopy was stealthily introduced before the trial Court by the plaintiff. 17. The agreed rent payable by the 1st defendant to the plaintiff was a sum of Rs.2800/- per month. The trial Court in the absence of any evidence fixed the mesne profits at Rs.3080/- from December, 2004. A very meagre increase in the rent was made by the trial Court to assess the mesne profits. 18. Learned counsel appearing for the appellant referred to the decision of this Court in Surinder Kumar vs Rattan Lal, [2006(2) Law Herald (P&H) 1137] : 2006 3 RCR (Civil) 291, wherein it has been held that provisional assessment of mesne profits shall be made on the basis of cogent and credible evidence. 19. 18. Learned counsel appearing for the appellant referred to the decision of this Court in Surinder Kumar vs Rattan Lal, [2006(2) Law Herald (P&H) 1137] : 2006 3 RCR (Civil) 291, wherein it has been held that provisional assessment of mesne profits shall be made on the basis of cogent and credible evidence. 19. As no evidence was available to fix the mesne profits in the instant case, the Court has given only a negligible increase in the rent. In other words, a sum of Rs.280/- was added to the agreed rent to fix the mesne profits. I do not find any error in the decision of the Courts below fixing the mesne profits. 20. It was lastly contended that an additional issue was framed by the Court, but no opportunity was given to the parties to lead evidence relatable to the additional issue framed by the Court. 21. An additional issue as to whether 1st defendant was liable to be evicted from the premises in question on the grounds mentioned in the plan was framed by the Court. The relief sought for by the plaintiff has been simply formulated as an additional issue. Both the parties having thoroughly understood the pleadings have let in evidence. Further such an additional issue framed by the trial Court is superfluous, inasmuch as the other issues have covered the dispute between the parties. The 1st defendant has not come out with a plea that she was prejudiced on account of lack of opportunity to address the additional issue framed by the trial Court. In view of the above, I find that there is no merit in the aforesaid submission made by learned counsel appearing for the appellant. 22. The substantial question of law formulated by this Court is answered against the appellant and in favour of respondent No.1. The appeal stands dismissed. There is no order as to costs. --------0.B.S.0------------