Jagdish Lal Kalra vs M/s Jagdish Chand Satish Kumar

G.R. Majithia, J.—The plaintiff has filed this Regular Second Appeal against the judgment and decree of the learned Additional District Judge, Kurukshetra, whereby the suit for possession was dismissed'' but the decree for mesne profits was maintained. However, the decree for mesne profits was converted into a decree for recovery of rent for the same period.

The learned lower appellate Court disallowed the relief of possession on the ground that the shop in dispute was constructed in August, 1976, and ten years period had expired during the pendency of the appeal Consequently, remedy of the plaintiff lay under the Haryana Urban (Control of Rent and Eviction) Act, 1973 and not by way of a regular civil suit. The view of the learned Additional District Judge is wholly erroneous.

The real controversy relating to the maintainability of the suit is concluded by the Supreme Court judgment in Nand Kishore Marwah and Others Vs. Samundri Devi, . It was held therein that the date of institution is relevant date for the purpose of finding out the maintainability of the suit and the subsequent or supervening events could not affect such maintainability. In this case it has been found by the learned trial Judge that the construction of the building was completed in the month of August, 1976, and the suit was filed on January 23, 1984, thus within the period of ten years from the date of the construction of the building. In such circumstances, in view of the provisions of section 12(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the suit was maintainable as it has been filed by she landlord within a period of ten years, referred to therein. This matter has been authoritatively settled by the Division Bench of this Court in R.S.A. No. 601 of 1987, Jai Bhagwan v. Santosh Kumar R.S.A. No. 601 of 1987, decided on July 26, 1988.

Consequently, I set aside the judgment and decree of the learned Additional District Judge and restore that of the trial Court. However, I allow three months time to the respondent to vacate the premises.