Dharam Chand Mittal vs Vanish Kumar

N.K. Kapoor, J.—This is defendant''s Regular Second Appeal against the judgment of the Additional District Judge, Ambala dated 4-5-1988 whereby the appeal filed by him against the judgment and decree of Sub Judge dated 16-10-1986 was dismissed.

Vanish Kumar, landlord of the tenanted premises filed a suit on 25-1-1982 for possession of the premises in dispute and also for recovery of Rs. 650 00 as arrears of rent etc. for the period 1-10 1981 to 30-11-1981. It was the case of the plaintiff that shop in question had been constructed in the year 1978, and since the period of 10 years had not elapsed from the completion of the construction, the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable to the premises in dispute.

Defendant put in appearance filed written statement and took up objections to the effect that the Civil Court has got no jurisdiction to try the suit. The suit is not maintainable in the present form, suit is bad for non-joinder of parties and that premises in question were completed much prior to the enforcement of the Haryana Urban (Control of Rent and Eviction) Act, 1973. On the pleadings of the parties, the following issues were framed :-

Whether the plaintiff is entitled to the house tax at the rate of 12 1/2% P.A. ? OPA.

Whether the shop in dispute was built in the year 1978 and is not covered under the provision of Haryana Urban (Control of Rent and Eviction) Act, 1978 ? OPP.

Whether the tenancy of the defendant has been terminated by valid notice 7 OPP.

Whether the plaintiff is entitled to recover on amount of Rs. 650/- as arrears of rent ? OPP.

Whether this court has no jurisdiction to try this suit ? OPD.

Whether the suit is not maintainable in the present form ? OPD.

Whether the suit is bad for non-joinder of parties ? OPD.

Relief.

Trial Court came to the conclusion that building in question was constructed on 5-11-1977 and so the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 were not applicable. Issues No. 6 and 7 were not pressed and all other issues were decided in favour of the plaintiffs. Consequently, the suit of the plaintiff was decreed as prayed.

Before the appellate Court, findings of the trial court were assailed on the ground that same are contrary to the facts on record. The Additional District Judge after perusing the relevant evidence on record found no merit in the contention of the counsel for the appellant and so affirmed the judgment and decree of the trial Court then dismissed the appeal. In this appeal, the learned counsel for the appellant has sought reversal of the judgment and decree of the courts below on the ground that the courts below have erred in law in not properly construing the relevant provisions of the Haryana Act and the judicial pronouncements of the Apex Court in this regard. His precise submission is that even if it be presumed (though not admitted) that demised premises was completed in the year 1976 as held by the courts below, the period of exemption of the applicability of the Rent Act stood expired in 1986 and on the expiry of this period of exemption, the rent Act comes into play and would govern the case in dispute That is to say suck orders would become non-existent on the expiry of the stipulated period. Secondly, Civil Court has got no jurisdiction to pass a decree of ejectment of a tedant from the demised premises after the expiry of period of exemption and any decree so passed becomes a nullity and thus inexecutable in view of coming into enforcement of the Rent Act.

Factual aspects of the case are not in dispute. The building in question was completed on 5-11-1977 as held by the trial Court. The suit was filed on 25-1-1982. As per section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 it excludes from its purview, the building, the construction of which is completed on or after the commencement of this Act for a period of 10 years from the date of its completion. Examined thus, there is no escape from the conclusion the Rent Act was not applicable when suit for possession and recovery of Rent etc. was filed on 25-1-1982. The precise question as to the fact of expiry of the exemption period in terms of section 1(3) of the Haryana Rent Act during the pendency of the case, came up for consideration before the Division Bench in Sat Narain v. Tek Chand 1988 H. R. R. 283 . Division Bench following the decision of the Apex Court in Nand Kishore Marwah and Others Vs. Samundri Devi, , held that proceedings will continue and the same would be decided by the Civil Court. This matter has once again been examined by the Apex Court in Atma Ram Mittal v. Ishwar Singh Panja 1988 (2) R. C. R. 423. The Apex Court after referring to the earlier judgment of the curt has held that Rent Act will not be applicable to suits instituted within 10 years from the date of the completion of the building According to the Apex Court, this exemption will apply for a period of 10 years and will continue to be available until suit is disposed of/adjudicated. It is also held, once a right is crystalised, the adjudication must be in accordance with law The judgments referred above squarely answers the points highlighted by the appellant. Counsel however placed reliance upon the judgment of the Apex Court in Hanumant Kumar Talesara Vs. Mohan Lal, . The court in the above referred case was considering the effect of coming into enforcement of the Rent Control Legislation upon a compromise decree suffered earlier. Thus the same has no applicability as per facts of the present appeal The latest pronouncement of the Apex Court in Atma Ram Mittal''s case fully applies on the facts of the present case No other point has been pressed or claimed. Appeal is wholly without merit and the same is accordingly dismissed. C. M. 2196-C of 1991 seeking classification of the order of this court dated 10-7-1991 where word ''rent'' for the amount paid for use and occupation was inadvertently used was sought to be corrected ; has consequently become infructuous and dismissed accordingly. No costs.