Girdhari Lal, etc. vs Bhag Singh and Another

J.V. Gupta, J.—This is Defendants Second Appeal against whom the suit for ejectment and recovery of arrears has been decreed by both the courts below.

The Plaintiff-respondent Bhag Singh brought the suit for the ejectment of his tenant-appellants from the three shops in dispute and for the recovery of Rs. 1,458/- for rent for the period 1st June, 1973, to 10th August, 1973. The suit was filed on 16th August, 1973. The Plaintiff pleaded that the Defendants took on rent three shops which had been newly constructed, and the construction of which was completed on 31st May, 1969, vide lease deed dated 8th April, 1969; that the lease was for the period 1st June, 1969 to 31st May, 1973 at an annual rent of Rs. 7,500/-; that the rent was to be paid in advance as agreed; that in accordance with the terms of the lease deed the Plaintiff got shutters and electricity fitted on the shops and the Defendants continued to be in possession thereof and paying the rent; that the lease period expired on 31st May, 1973. It was pleaded that at the lease had expired, the Defendants were liable to ejectment. The Defendants contested the suit denying that the shops had been newly constructed It was further pleaded that the Civil Court bad no jurisdiction and the Plaintiff should have sought remedy under the East Punjab Urban Rent Restriction Act.

On the pleadings, the real controversy between the parties was whether the shops in dispute were newly constructed on 31st May, 1969 and if to, to what effect This was the subject matter of issue No. 5. The trial Court found that the building in dispute has been newly constructed and being so it comes within the ambit of expression "constructed building" and, as such, the notification issued u/s 3 of the East Punjab Urban Rent Restriction Act was attracted and the demised premises were exempt from the operation of the Rent Act. In view of this finding, the suit was decreed In appeal, the learned Additional District Judge affirmed the said finding of the trial Court and, thus, maintained the, decree passed in favour of the Plaintiff Dissatisfied, the Defendants shave filed this Second Appeal.

The real controversy between the parties is whether the building in dispute can be said to be "newly constructed" for purposes of notification dated 21st June, 1971 issued u/s 3 of the East Punjab Urban Rent Restriction Act. By virtue of the said notification, the President of India was pleated to exempt every building constructed during the years 1968, 1969 and 1970 from the provisions of the said Act for a period of five years from the date of its completion. It is the common case of the parties that in case the building in dispute Is covered by the said notification, the Defendants were liable to ejectment.

According to the Learned Counsel for the Appellants, the shops in dispute were not constructed in the year 1969 as claimed in the plaint. Only certain repairs and face-lifting was done by the landlord and, therefore, on that basis it could not be held that the shops were newly constructed as to claim exemption under the said notification. According to the Learned Counsel, even on the findings of the courts below, it could not be held that the shops were newly-constructed in the year 1969. On the other hand, Learned Counsel for the Respondent Plaintiff submitted that on the appreciation of the evidence it has been concurrently held that the shops were newly constructed in the year 1969 and that being a finding of fact, howsoever wrong, could not be interfered with in Second Appeal.

Before entering into discussion it will be necessary to reproduce the findings of the Courts below in this behalf. The trial Court found that there is no denial from the Defendants that the frontal portion 34''x20'' has been newly-constructed. According to the trial Court, in fact, the frontal portion of a building matters for the rental purposes and out of the entire premises in dispute, one-half portion has been constructed on the front side. The back portion upto the extent of 20'' remains the old construction. According to the trial court, only the frontal portion are the shops whereas the back portion is being used as a part of the shops for storing of timbers, etc. but nevertheless the buildings will remain to be considered as reconstructed. As regards the finding of the lower appellate Court, it has been found that "The evidence of the parties is, thus, consistent to the effect that out of the total area of the shops in dispute, the only area measuring 20''x32'' was newly constructed area on the front side of the shops while the remaining portion also measuring 20''x32'' is old construction." It has been further found that the frontal portion of the shops is admittedly new construction but only the back portion which is obviously to be used as go-downs for the shops continued to be old construction. According to the lower appellate Court, the new construction is half of the total floor area and it has clearly increased the storing capacity and the usable accommodation in the shops. Thus, admittedly it is the frontal portion of the shops which has been newly constructed by raising pillars and putting shutters therein whereas the back portion is the old one. It is not disputed that the tenancy is one, including both the portions, ie, the old as well as the new. Once it is so found then where a part of the premises was constructed during the period of exemption under the notification and the rest already existed, and the whole is let out to a tenant, the building will not be protected by the notification as held in Mangat Ram v. Om Parkash, (1962) 64 P. L R 30. It has been further observed in the said authority that "the obvious intention of the Government in promulgating the notification is to exempt such buildings as are constructed during the aforesaid year and are let out to a tenant."

The definition of building given in the East Punjab Urban Reat Restriction Act includes a part of the building let to a ten ant. Unit is the building in possession of the tenant though it may be only a part of the entire building. As observed earlier, admittedly, this unit of the building which has been let out to the Defendants includes bath the portions i e., the old as well as new. Once it is so found, the building could not be said to be newly constructed for purposes of the notification so as to claim exemption from the operation of the Rent Act. The Courts below as well as the counsel for the Respondent mainly relied on Gran Chand v. Sk. Chheju Ram 1972 C.L. J. 153. wherein it was observed that no hard and fast rule can be laid down as to whether alterations, additions or modifications made in a building amount to a "new construction" within the meaning of the said notification therein and each case will have to be decided on its own facts and circumstances. The objects of giving unlimited power to the State Government to exempt the building or a class of buildings is to encourage new construction The relevant observations on which the Courts below have relied upon are:

If a landlord invests some substantial amount of money in the alterations, additions or modifications of a building 10 as to strikingly change its complex, he should be entitled to the benefit of the new investment and also to claim back possession of the property from the tenant if he so desires.

Ultimately on the facts and circumstances of that case it was held that the history of the building in dispute leaves no room for doubt that in the year 1961, the Plaintiff must be held to have constructed a new building as contemplated in the notification In that case, earlier it was almost a temporary wooden stall with broken brick walls and a peep a tin roof Even the shed was not being separated by the walls but by wooden bamboos. The Defendant asked the Plaintiff to get the shop reconstructed for him which was done by the Plaintiff whereby two walls were altogether constructed anew with the new bricks on old foundations wherein too some new bricks were used and the peepa-tin was replaced by concrete cemented roof. All the four walls were re-plastered with, cement and a pucca portion was constructed in the entire shop., The shop was provided with two entrances and two exists and Hew wooden doors with regular frames were provided. Thus, the said case is clearly distinguishable on the facts found in that case Moreover, in the present case it is the admitted case of the parties that the whole of the premises let out to the Defendants were not reconstructed. Only front portion was reconstructed. The mere fact that a huge amount was spent in reconstructing the front portion did not mean that the demised premises will be deemed to be newly constructed for the purposes of the notification as to claim exemption from the operation of the Rent Act- At the most that may be a relevant fact for the purposes of fixation of the fair rent of The demised premises. Besides that, there is nothing in the rent note Ex. P-1 regarding the new construction. Therein, only the description of the building is given without saying anything regarding its construction, o1d or new. Thus, on the facts admitted, it could not be held that the building in dispute was newly constructed as claimed by the Plaintiff in his plaint. As observed earlier, at the most the front portion was reconstructed as to give a face lift which was primarily for the purpose of fixation of rent Thus, the findings of the Courts below are wrong, illegal and are vitiated.

It was next contended on behalf of the Appellants that the notification dated 21st June 1971 was made applicable to the buildings, constructed in the years 1968, 1969 and 1970 and, thus, being retrospective in operation was without jurisdiction. According to the Learned Counsel, the notification could only be prospective and, thus, could he made applicable only to the buildings to be constructed after the issuance of the notification and not prior thereto. Admittedly, no such question was raised in either of the Courts below nor in the grounds of appeal in this Court. However, I allowed the parties to argue on this point but in view of my findings earlier, no decision is necessary in this respect and is left open to be decided in an appropriate case.

As a result of the above discussion, this appeal partly succeeds and the judgments and decrees of the courts below as regards the ejectment of the Defendants is set aside whereas the appeal with respect to the recovery of arrears of the rent is dismissed. In the circumstances of the case, the parties will bear their own costs.

Appeal partly allowed.