Smt. Promila Kumar vs Pawan Kumar and others

Jaswant Singh, J.—Defendant/appellant is in second appeal against the judgements and decrees passed by the courts below whereby the suit of the plaintiffs/respondents for possession by way of ejectment of the defendant/appellant was decreed by the trial court and the appeal filed by the defendant/appellant was dismissed by the appellate court.

Facts necessary for the decision of the present appeal are that respondents/plaintiffs filed a suit for possession by way of ejectment of appellant/defendant from the rented premises on the ground of unauthorised occupation of the rented premises after the expiry of the lease period. It was alleged that the rented premises was leased out to the defendant/appellant vide registered lease deed dated 10.9.2007 for a period from 1.5.2007 to 30.4.2008 at the monthly rent of Rs. 15,000/- and after the expiry of lease period, despite repeated requests, including legal notice dated 16.6.2008 terminating the tenancy, the defendant/appellant failed to vacate the premises. It was further alleged that defendant/appellant had not paid rent for the period from 1.5.2007 to 31.7.2007 and 1.5.2008 to 31.5.2008, totalling Rs. 1,05,000/-and that after termination of tenancy she was liable to pay the mesne profit @ Rs. 25,000/- per month. Illegal construction of a shed by the defendant/appellant in the backside courtyard of the rented premises was also alleged.

Upon notice of the suit, defendant filed written statement admitting the execution of the lease deed. It was further stated that plaintiffs/respondents had permitted defendant/appellant to use the shed constructed at the backside of the courtyard and that she was being compelled to increase the rent from Rs. 15,000/-per month to Rs. 35,000/-per month and the suit had been filed only to harass her.

On the pleading of the parties, issues were framed. Both sides led evidence in support of their respective pleas. On the basis of oral as well as documentary evidence available on the record, the learned trial court decreed the suit of the plaintiffs/respondents. The appeal filed by the defendant/appellant was also dismissed by the learned appellate court. Hence the present regular second appeal.

It is submitted by the learned counsel for the defendant/appellant that the demised premises had been constructed 12 years before the filing of the suit and though the appellant/defendant had moved an application for amendment of written statement for taking the plea qua the applicability of the provisions of Haryana Urban (Control of Rent & Eviction)Act, 1973 (for short 1973 Act), yet the trial court wrongly dismissed the said amendment application vide order dated 24.2.2011. It is thus contended that the suit simpliciter would not be maintainable and protection under the 1973 Act would be applicable to the appellant/defendant.

After hearing the learned counsel and perusing the impugned order, I find that the argument is wholly misplaced. The execution of the lease deed dated 10.9.2007 (Ex.P1)is not denied. As per lease deed the period of lease was one year commencing from 1.5.2007 to 30.4.2008 and it contained no provision for extension of the lease period. Legal notice dated 14.06.2008 (Ex.P-2) terminating the lease deed was proved by way of documents Ex.P-3 to Ex.P-6 i.e. postal receipt, speed post receipt, acknowledgement etc. Moreover, it was rightly held by the appellate Court that in view of the specific condition in the lease deed dated 10.09.2007 specifying the lease period there was no mandatory requirement of issuing notice u/s 106 of the Transfer of Property Act.

As regards the contention that the demised premises had been constructed 12 years prior to the filing of the suit, it has come on record that suit was filed on 12.8.2008. Respondents/plaintiffs have produced sufficient evidence viz occupation certificate dated 4.1.2000 Ex.P-19, sewerage connection letter dated 3.2.2000 Ex.P19, occupation certificate dated 3.1.2000 Ex.P-20, DPC certificate dated 3.6.1999 Ex.P-21 to show that the construction of the premises in question was completed in the year 2000 and as such it had not completed ten years on the day when the present suit was filed on 12.08.2008 and as such provisions of the 1973 Act were not applicable to the premises in question.

As regards the submission that the learned trial Court had illegally dismissed the amendment application of the defendant/appellant to incorporate the plea that the premises in question was more than 10 years old on the date of filing of the suit, the learned Appellate Court has rightly held that in view of the specific stand taken by the respondent/plaintiff that construction had been completed in the year 2000, the appellant/defendant had not been able to show that despite due diligence the plea of construction being more than ten years old could not be taken by her while filing the written statement. Moreover, the appellant/defendant cannot take any benefit of her failure for not taking recourse to appropriate remedy at the appropriate stage of the trial.

In view of the above finding no merit in the appeal, the same is hereby dismissed.