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Judgment
This appeal is directed against the judgment and decree passed by 1st Additional District, Judge, Jammu in five No. 15/Cos 10031997 where
by a decree for possession of the suit properly as well as for sum of Rs. 24,000/ on account of use and occupation of the said premises has been
passed in favors of respondent ( here in after referred to as plaintiff) and against the appellants ( herein after referred to as defendants).
So far the facts giving rise to the present appeal are concerned, those are by and large admitted and are being referred to briefly for the
purposes of determination of this appeal,
Plaintiff had let out first floor of the annexe of his property known as Kothi Amar Villa, Canal Road, Jammu to the defendants on a rental of Rs.
1000/ per month. Half of the ground floor was also taken on rent by the defendants. According to plaintiff rent was fixed of that half, portion of
ground floor was Rs. 1200/, whereas according to defendants rent fixed was Rs. 1000/ per month, what was the rate of rent is not material since
the plaintiff had throughout accepted the rent at the rate of Rs. 2000/ per month for the entire let out premises.
It appears that plaintiff did not intend to retain the defendants as tenants in the premises in question, as such a notice under section 80 P.C. and
section 106 of Transfer of Property Act was issued calling upon the defendants to vacate the premises after expiry of statutory period of notice
and also termaining the same from midnight of 28021993. It was specifically mentioned in the notice that in case the defendants want to occupy the
premises in question, they shall be liable to pay Rs, 600/ per month as rent with effect from 01031993. It was specifically mentioned in the notice
that in case the defendants want to occupy the premises in question, they shall be liable to pay Rs. 6000/ per month as rent with effect from
01031993 to 30061993. An additional ground of personal requirement was also pleaded by the plaintiff. This suit came to be resisted and
contested by the defendants, who raised numerous preliminary objections viz. Suit being not properly verified, notice served being not in
accordance with law. On merits it was pleaded by the defendants that they have no intention to retain the premises after they are able to get
suitable premises for housing the office. Receipt of notice issued by the plaintiff on 27011993 was admitted, but its legality and validity was
questioned. It may be pointed out here that the service of notice is even otherwise established from the reply sent by the defendants to the said
notice. It may also be clarified that it is admitted case of both the parties that the provisions of J&K Houses and Shops Rent Control Act are not
applicable to the premises in question/
On the aforesaid pleadings parties went to trial on the following issues
i) Whether at the time of creating of tenancy it was agreed to by the parties that the plaintiff will be found by the quantum of the rent assessed by
the kept assessment committee if so, what is its effect? OPD.
ii) Whether under agreement between the parties the plaintiff can seek evictiory of the tenant from the premises only when he required the same for
his personal use and occupations? OPD
iii) Whether the notice terminating the tenancy under section 106 of transfer of Property Act is in accordance with Law? OPD.
iv) Whether the provision of Section 80 CPC have not been complied with, if so, what is its effect? OPD
v) Whether half portion of the ground floor was taken by the defendants on a monthly rental of Rs. '1200/? OPD
vi) Whether the plaint is not verified in accordance with law? OPD
vii) Whether the plaint is not verified in accordance with law/? OPD
viii) Whether the plaintiff is entitiled to compensation for the use and occupation of the premises @ Rs. 6000/per month, if so, from which date to
which date? OPP
Ultimately trial court passed a decree as detailed here in above. During the course of hearing of this appeal, learned Additional Advocate
General Submitted that possession of the premises in question has since been surrendered by the defendants, the only question therefore that
survives in this appeal is claim of Rs. 6000/ per month towards the use and occupation charges after determination of tenancy by the plaintiff. As
according to Mr. Kapoor trialcourt has fallen into error while accepting the claim of the plaintiff in this behalf and decreeing the suit in toto, thus
decree was liable to be modified there by confining the claim of use and occupation to Rs. 2000/ per month, which was the agreed rent. On the
other hand, learned counsel appearing for the plaintiff while controverting all the pleas urged on behalf of the defendants submitted that on the basis
of evidence produced by his client, no fault can be found with the impugned decree. It was further pointed out by Mr. L.K. Sharma that the
evidence produced on behalf of plaintiff has remained uncontroverted and unquestioned, therefore he prayed for dismissal of the appeal with costs.
In this case Mr. P.N. Kapoor has appeared as attorney on behalf of the plaintiff. Amongst other things, he has stated that the plaintiff can get
more than Rs. 8000/ per month as rent for identical accommodation and in case he hires such accommodation else where, he will have to pay Rs.
10000/ to Rs. 12.000/ per month. When a reference is made to the crossexamination directed to this witness, he has not been crossexamined on
this aspect of .the case on behalf of the defendants. In fact what appears to have been the trend of crossexamination is questioning the claim of
personal requirement that was urged by the plaintiff Similar is the position in respect of crossexamination of PW Ram Lai, who had got the notice in
question issued. He has also stated that for a available to defendants, it would not be possible to get the same at a rent less than Rs. 8000/ to Rs.
10.000/. On the other hand, defendants had examined Surinder Kumar and Anil Sharma, DWs. So for Surinder Kumar is concerned, he has not
said a word in support of the case of defendants. He is a Chokidar of the premises in question. Similarly DW Anil Sharma has also not said
anything in support of the case of defendants. In fact the statements of both these DWs do not in any manner advance either the case or support
the defense put forth by the defendants.
Now remains the question as to how the claim of the plaintiff should have been adjudicated by the trial court. This matter need not detain us as
would be seen hereafter.
In AIR 1961 Jammu and Kashmir 39"" L. Bhagwan Dass Mengi, Appellant Vs Union of India, Respondent, a Division Bench of this court held
that where the tenant after the expiry of lease remains in occupation of the premises inspite of the fact that the landlord served a notice on him to
vacate and warned him that if he remains in occupation he will have to pay specified sum as damage for wrongful use and occupation of the
building the defendant will be liable to pay that amount provided it is not penal and unconscionable. Facts of this case need to be briefly discussed
as it is nearer to the facts of the appeal under consideration. Premises were let out by the appellant to Union of India, respondent for a period of
10 years which expired on 11th January, 1959 when it was required to hand over vacant possession of the premises together with furniture and
fittings on that date but it failed to do so. Thus notice came to be issued other things it was pointed out that sum of Rs. 500/ per month would be
charged as damages for wrongful use and occupation. And in this background suit came to be filed for this amount since the defendants did not
vacate the premises. Trial court decreed the claim of the appellant but @ Rs. 2007 per month, and in his appeal District Judge enhanced it to Rs.
384/ per month. Both appellant in this court and finally this court allowed the appeal preferred by the appellant and dismissed the appeal filed by
the respondent.
To similar effect is another judgment of this court reported in 2 Jammu & Kashmir IR 42"" P. Jogeshwar Kumar, defendantapplicant VsMst.
Suwarn Kour and Wasawa Singh, Plaintiffsnon applicants.
Nothing could be brought to the notice of court to the contrary by the learned counsel. The only thrust of the submission urged on behalf of the
defendants was that the claim allowed by the trial court is excessive and it had fallen into error while decreeing the suit. As already noticed the
evidence examined on behalf of the plaintiff has firstly remained uncontroverted and no challenge was made to the quantum of rent claimed by the
plaintiff as well to the rate at which similar premises would be available in the vicinity. In the face of this position, trial court had no option but for
decreeing the suit of the plaintiff. Therefore this argument does not hold good and is hereby rejected. An attempt was also made by Mr. Kapoor
by referring to the pleadings that the claim*bf the plaintiff should not have been decreed. In this context when a reference is made to paragraph six
of the plaint, it is clear that the plea has been urged simply to be rejected, for ready reference paragraphs 6 of the plaint and that of the written
statement are reproduced here in below. Para 6 (of plaint)
That the plaintiff has further made clear to the defendants that in case defendants failed to vacate the annexe of the plaintiff by 1st of March 1993,
the plaintiff will be charging Rs. 6000/ per month as compensation for the use and occupation of the premises."" Para 6(of written statement) ""That
Para 6th of the plaints is misconceived and incorrect. The same therefore is denied.
This clearly shows that how the pleadings of the plaintiff has been dealt with by the defendants. In fact there is no denial in the eyes of law.
Particularly in the backdrop of Order 8 Rule 5 of the code of Civil Procedure, 1977 (1920 A.D. In fact written statement clearly shows that the
question of fact having not been specifically denied tantamount to admission of the facts in the corresponding Para of the plaint, which facts have
been substantiated by the plaintiff from his evidence as discussed above, and which remained unrebutted on the part of the defendants.
No other point has been urged.
From whatever angle the case of the defendants may be examined in this appeal, there is no force in it and the same deserves 'to be rejected
and it is ordered, accordingly. Consequently the appeal is dismissed, defendants will also pay costs in this appeal to the plaintiff.