Hakumat Rai and others vs Shri Vidya Sagar and another

J.V. Gupta, J.—This is defendant''s second appeal against whom the decree for ejectment has been passed by both the courts below.

The plaintiff-respondent filed the suit for the ejectment of his tenant, the defendant appellant, from the shop, in question, on the allegations that the defendant was inducted as a tenant under the plaintiff in the said newly constructed shop with effect from April 8, 1968, for a period of less than one year at a monthly rent of Rs, 40/-. The construction of the said shop was completed towards the end of June, 1967 and as such, it was exempt from the operation of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act), by virtue of the notification u/s 3 of the Act. The tenancy was determined by serving the notice on the 20th February, 1970. In the written statement, the defendant admitted his relationship of the tenant with the plaintiff, but denied that the shop was a newly constructed one and that the provisions of the Act were not applicable. The trial Court found that the plaintiff had failed to prove that the building Was constructed within five years of the filing of the suit and consequently the same was not exempt from the provisions of the Act Even then, it had the jurisdiction to pats the decree for ejectment As a result, the decree for the eviction of the defendant from the premises, in dispute, was passed in favour of the plaintiff. Dissatisfied with the same the defendant filed an appeal whereas the plaintiff filed the cross-objections challenging the finding of the trial Court that the building was not exempt from the provisions of the Act. The learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the shop in question was new construction made in June, 1967 and was, thus, exempt from the operation of the Act. In the appeal the finding of the trial Court that the Civil Court had the jurisdiction to pass the decree for ejectment was affirmed Thus, the cross-objections filed on behalf of the plaintiff ere allowed, but the appeal filed on behalf of the defendant was dismissed and as such, the decree passed by the trial Court evicting the defendant from the demised premises was maintained. Dissatisfied with the same, the tenant defendant has come up in second appeal to this Court.

The learned counsel for the appellant, contended that it has been wrongly held by the lower appellate Court that the building was a newly constructed one and, thus, exempt from the operation of the Act According to the learned counsel, it was a case of extensive repairs and not of a newly constructed building so as to claim the exemption under the Act It was further contended that if it would have been a new construction, then, necessary permission of the Municipal Committee would have been obtained by the plaintiff as contemplated u/s 18 of the Punjab Municipal Act. Admittedly, no such permission was ever obtained by the plaintiff and, therefore, he failed to prove that the shop in question was a newly constructed one

After hearing the learned counsel for the parties and going through the evidence on the record, I do not find any illegality or infirmity in the findings arrived at by the lower appellate Court which is a final court of fact In the rent note Exhibit P (sic), executed on behalf of the defendant, there is a clear recital that the shop in question was a newly constructed one. Apart from that, before the filing of the present suit, notice Exhibit P. W-6/5 was given to the defendant in which it was again asserted that the shop in dispute was a newly constructed one No reply to the said notice was ever given be the defendant. In addition, the plaintiff brought on the record, the plans of the building constructed in June, 1967 and prior thereto. Exhibit P W 6/4 is the plan of the building after the construction whereas, Exhibit P.W 6/1 is the plan of the shop after prior to the construction The defendant himself produced Harbans Singh, Civil Engineer and Architect D W-2 who proved the report Exhibit D-2 after inspection of the building in question. He has stated therein inter alia as follows:--

The building seems to be 75 years old and it has been recently repaired and re conditioned its walls, floor, roof and doors have been repaired and re conditioned with new materials and one new steel shutter is fixed in front of the shop building.

The report Exhibit D 2 further states--

The general overall condition of the shop building is very good and it is in a very good and sound condition.

From a perusal of the said documentary evidence, it is quite evident that the shop was re-constructed in June, 1967. Simply because certain old material was used in the new construction, it does not mean that it was only a case of extensive repairs. The lower appellate Court has discussed the entire evidence and has observed--

Further a perusal of the said plan, Exhibit P.W 6/1, showed that previous to June 1967, the shop in question, was 25 feet long 4 feet wide and 9 feet in height and it was marked A. The site marked B was the deorhi. The site marked C was a staircase. Site marked D was another shop. Now admittedly, the length of the shop in question is only 21 feet, but the width has been increased to about feet. If that was so, then atleast, two walls of this shop were removed from the existing places.

In this view of the matter, it was ultimately concluded by the lower appellate Court that the shop was newly constructed in June, 1967, which the defendant himself admitted in the rent note, Exhibit P-1. It is not disputed that if the shop, in question was constructed in June, 1957, then it was exempt from the operation of the Act and that the civil Court had the jurisdiction to pass the decree of ejectment against the defendant appellant.

Consequently, this appeal fails and is dismissed with costs.