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2013 DIGILAW 1381 (PNJ)

Gurdev Singh v. Labh Singh Gill

2013-10-21

L.N.MITTAL

body2013
JUDGMENT L.N. Mittal, J. (Oral) Aggrieved by order dated 7.4.2012 Annexure P/7 passed by the trial court thereby dismissing application Annexure P/5 filed by defendants/petitioners for dismissing the suit which has been instituted by respondent/plaintiff, the instant revision petition has been filed by the defendants under Article 227 of the Constitution of India to assail the said order. Respondent-plaintiff has filed suit for possession of the suit shop situated in Sudhar Bazar and for recovery of mesne profits alleging that the defendants were tenants in the disputed shop and their tenancy stands terminated. The defendants in their application Annexure P/5 alleged that the suit property falls within urban area under the East Punjab Urban Rent Restriction Act, 1949 (in short, the Act) as per notification dated 23.5.1975 Annexure P/1 (correct date 19.5.1975) and therefore, in view of provisions of the Act, suit does not lie in the civil court. Plaintiff by filing reply Annexure P/6 opposed the application and controverted the averments made therein. It was pleaded that the alleged notification Annexure P/1 declaring the area as urban area is non-existing, nonest and never implemented. It was also alleged that there is no Notified Area Committee or Municipal Council and rather there is Gram Panchayat and therefore, the concerned area is not urban area. I have heard counsel for the parties and perused the case file. Counsel for the petitioners reiterated that vide notification dated 19.5.1975 Annexure P/1, Sudhar Bazar where the disputed shop is situated has been declared as urban area for the purpose of the Act and therefore, only Rent Controller has jurisdiction to evict the petitioners as tenants and the civil suit filed by the plaintiff in the civil court cannot proceed. On the other hand, counsel for the respondent-plaintiff contended that according to information received by the plaintiff under the Right to Information Act (RTI Act), Sudhar Bazar has not been declared as urban area. It was also argued that disputed question of fact whether the suit property is situated in urban area or not can be decided after the parties lead their evidence and the plaint cannot be rejected at the threshold. It was also argued that disputed question of fact whether the suit property is situated in urban area or not can be decided after the parties lead their evidence and the plaint cannot be rejected at the threshold. Reliance in support of this contention has been placed on judgment of this Court in M/s Gupta Hotel, Ballabgarh, Proprietor Neki Ram Gupta versus The State of Haryana and Ors., 2009(3) Civil Court Cases 430, judgment of Hon'ble Supreme Court in Bhau Ram versus Janak Singh and Ors., 2012(3) Civil Court Cases 636 and judgment of Rajasthan High Court in Nanu Ram Sharma & Anr. Versus Additional District Judge (Fast Track) No. 2, Jaipur District Jaipur & Ors. 2012(2) Civil Court Cases 462. I have carefully considered the rival contentions. Notification dated 19.5.1975 Annexure P/1 which has not been rebutted in any manner depicts that the said notification has been issued in exercise of power under section 2(j) of the Act which defines 'urban area'. The said provision is reproduced hereunder :- “2(j) “urban area” means any area administered by a municipal committee, a cantonment board, a town committee or a notified area committee or any area declared by the State Government by notification to be urban for the purpose of this Act.” It is manifest from bare perusal of the aforesaid provision that any area administered by a municipal committee, a cantonment board, a town committee or a notified area committee is automatically urban area for the purpose of the Act. Besides it, the State Government may also declare any other area as urban area for the purpose of the Act. Thus, not only the areas falling within municipal limits are urban areas for the purpose of the Act but also other areas which have been declared as urban areas by notification by the State Government for the purpose of the Act are also urban areas for this purpose. In the instant case, Sudhar Bazar may not be situated in area of a municipal committee, a cantonment board, a town committee or a notified area committee. However, State Government vide notification Annexure P/1 has specifically declared Sudhar Bazar area as urban area for the purpose of the Act in exercise of power under section 2(j) of the Act. The disputed shop as per plaint Annexure P/4 itself is situated in Sudhar Bazar. However, State Government vide notification Annexure P/1 has specifically declared Sudhar Bazar area as urban area for the purpose of the Act in exercise of power under section 2(j) of the Act. The disputed shop as per plaint Annexure P/4 itself is situated in Sudhar Bazar. Area of Sudhar Bazar has been declared as urban area for the purpose of the Act. Consequently, provisions of the Act are applicable to the disputed shop situated in Sudhar Bazar which is urban area for the purpose of the Act. Jurisdiction of civil court to try the suit for possession by ejectment of the tenants (defendants) is, therefore, barred by the Act. Information obtained by respondent under the RTI Act has no relevance because the said information has been obtained from Deputy Director, Urban Local Bodies, Ludhiana. The said information appears to be for the purpose of the Municipal Act and not for the purpose of the Act i.e. Rent Act. On the other hand, there is gazette notification Annexure P/1 dated 19.5.1975 issued by the State Government declaring Sudhar Bazar as urban area for the purpose of the Act. Consequently, information obtained by the respondent-plaintiff under the RTI Act cannot over-ride the notification Annexure P/1. The contention that the disputed questions of fact cannot be decided without leading evidence is not available in the instant case because according to plaintiff's own version, the disputed shop is situated in Sudhar Bazar and vide notification Annexure P/1, Sudhar Bazar has been declared as urban area for the purpose of the Act. Consequently, the question of recording and appreciating the evidence for this purpose does not arise. In view thereof, judgments in the cases of M/s Gupta Hotel, Ballabgarh, Proprietor Neki Ram Gupta (supra); Bhau Ram (supra) and Nanu Ram Sharma & Anr. (supra) cited by counsel for the respondent-plaintiff have no applicability to the facts of the case in hand. For the reasons aforesaid, I find that the civil court has no jurisdiction to try the suit for possession of the disputed shop for ejectment of the defendants who were tenants therein. Impugned order passed by the trial court that this question would be determined after recording evidence is, therefore, illegal and suffers from jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P/7 passed by the trial court is set aside. Impugned order passed by the trial court that this question would be determined after recording evidence is, therefore, illegal and suffers from jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P/7 passed by the trial court is set aside. Application Annexure P/5 filed by the defendants is allowed and plaint Annexure P/4 instituted by respondent/plaintiff stands rejected.