Ram Singh vs Gian Chand

L.N. Mittal, J.

CM No. 11142-C of 2012

Allowed as prayed for.

CM No. 11143-C of 2012

Allowed as prayed for.

CM No. 11144-C of 2012

The application is allowed and Annexures A-1 to A-7 are taken on record, subject to all just exceptions.

RSA No. 4071 of 2012

Plaintiff-Ram Singh who was successful in the trial Court but has been partly non-suited by the lower appellate Court, has filed this second appeal.

Plaintiff-appellant filed suit against defendant-respondent Gian Chand for possession of the disputed shop by ejectment of defendant there from and also for recovery of rent amounting to Rs. 33,400/- w.e.f. 01.03.2005 (01.03.2003 ?) till 30.06.2005 and mesne profits @ Rs. 2,000/- per month since 01.07.2005 till vacation of the disputed shop.

Admittedly defendant is tenant in the disputed shop under the plaintiff. The plaintiff alleged the rate of rent to be Rs. 1,250/- per month and claimed arrears of rent at the said rate. The plaintiff also alleged that the disputed shop is situated in abadi deh of village Majri and tenancy of defendant was terminated by service of notice.

The defendant claimed the rate of rent to be Rs. 500/- per month only. He also pleaded that he had paid rent up to 31.05.2005. The defendant also alleged that the disputed shop is situated within urban area i.e. municipal area of Panchkula and, therefore, in view of applicability of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short, the Rent Act) to the demised shop, Civil Court has no jurisdiction to try the suit. Various other pleas were also raised.

Learned Civil Judge (Senior Division), Panchkula vide judgment and decree dated 26.05.2011 decreed the plaintiff''s suit for possession of demised shop and also for recovery of arrears of rent since 01.03.2005 till 30.06.2005 @ Rs. 500/- per month and also mesne profits at the same rate since July, 2005 till vacation of the demised shop. Payment of amount during pendency of the suit was ordered to be adjusted. In first appeal filed by defendant, learned Additional District Judge, Panchkula vide judgment and decree dated 09.06.2012 upheld the trial Court''s decree regarding arrears of rent only and dismissed the suit regarding the remaining relief. Feeling aggrieved, plaintiff has filed this second appeal.

I have heard Learned Counsel for the appellant and perused the case file.

The question that arises for adjudication in this second appeal is regarding applicability of the Rent Act to the disputed shop. In the plaint, the plaintiff tried to project that since the shop is situated in abadi deh of village i.e. in rural area, Rent Act is not applicable to it and, therefore, Civil Court has jurisdiction to try the suit for ejectment of the defendant-tenant. However, the defendant pleaded that the disputed shop is situated in municipal limits of Panchkula and, therefore, Rent Act is applicable to the disputed shop. Plaintiff and his witnesses had to admit that the disputed shop is situated in municipal area of Panchkula. Consequently it is now undisputed that the disputed shop is situated in municipal limits of Panchkula and, therefore, Rent Act is applicable to the disputed shop.

Faced with the aforesaid situation, the plaintiff came with a new plea that the disputed shop was constructed in the year 1999 and, therefore, it was exempted from applicability of the Rent Act up to period of ten years and consequently Rent Act was not applicable to the disputed shop when the suit was filed on 17.08.2005 and jurisdiction of Civil Court was, therefore, not barred. However, no such plea was taken in the plaint. Counsel for the appellant contended that this plea was taken in replication which is also part of pleadings. The contention cannot be accepted. If the plaintiff wanted to seek exemption from applicability of the Rent Act to the disputed shop on this ground, the plaintiff had to plead this fact in the plaint and not in replication.

Even otherwise, plaintiff-appellant has failed to prove that the disputed shop was constructed in the year 1999 and was, therefore, exempted from the provisions of the Rent Act at the time of filing of the suit. There is only oral evidence led by the plaintiff in this regard. The said oral evidence stands rebutted by oral evidence of the defendant. Counsel for the appellant referred to evidence regarding electricity connection in the disputed shop. However, Brij Mohan, Meter Reader from power utility, appearing as PW-4 stated that it was not clear from the record brought by him as to in which premises the electricity meter was installed. Consequently from the statement of the said witness, it cannot be said that the electricity connection obtained in the name of plaintiff''s son on 06.04.2000 was installed in the disputed shop. However, even assuming that the said electricity meter was installed in the disputed shop, it would not even remotely depict that the disputed shop was constructed in the year 1999. Even after construction of the disputed shop long ago, the plaintiff might not have obtained electricity connection till the year 2000. Obtaining of electricity connection may only depict that shop had been constructed prior to obtaining of the electricity connection but it would not depict that it was constructed immediately prior to the obtaining of the electricity connection. The property might have been constructed months, years or decades prior to it. For the reasons aforesaid, I find that the plaintiff has miserably failed to prove that the disputed shop was exempted form the applicability of the Rent Act, when the suit was filed. Consequently, Civil Court has no jurisdiction to try the instant suit for ejectment by defendant-tenant from the demised shop. There is, therefore, no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed in limine.