The Mahilpur Fertilizers vs Balraj Singh

Rakesh Kumar Jain, J.—The defendant is in second appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiff for his ejectment from the premises in dispute and recovery has been de-creed. The brief facts of the case are that the plaintiff filed suit for ejectment of the defendant from the building in question situated in the rural area of Mahilpur, on the Phagwara road, let out to the defendant @ Rs. 160/- per month, on the ground that defendant is a chronic defaulter and brought material alteration in the demised premises. The plaintiff served registered notice on the defendant on 10.8.1983, requiring him to pay the rent and interest and to vacate the demised premise by 30.9.1983 but since he had refused, therefore, the suit is filed for seeking eviction and for recovery of Rs. 640/- as arrears of rent from 1.10.1983 to 31.1.1984 @ Rs. 160/- per month and Rs. 184.80 Ps. as interest from 1.5.1982 to 31.1.1984 @ 6% per annum.

In the written statement, the defendant admitted that there is a relationship of landlord and tenant between the parties but it was denied that the suit property is situated in the rural area. Rest of the averment with regard to non-payment of rent was also denied. In the replication, it was alleged, that in the earlier litigation between the parties before the Rent Controller at Garhshankar, it was held that it had no jurisdiction to entertain the rent petition holding that the demised premises is not situated within the urban area of Mahilpur.

On the pleadings of the parties, following issues were framed on 30.5.1984:-

Whether the defendant is liable to be ejected? OPP.

Whether the Civil Court has got no jurisdiction? OPD

What is the effect of dismissal of previous ejectment petition? OPD

Whether a valid notice was served upon the defendant? OPP

Relief.

The learned trial Court did not accept the plea of the defendant that the demised premises has come within the limits of the Municipal Committee, Mahilpur in view of Notification of Government of Punjab on the ground that demised premises is located in Khasra No. 34/21/1/1 and 34/21/1/2 and not in Khasra-No. 34, which has not been declared as an urban area.

The defendant filed 1st appeal and an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 [for short the CPC] for additional evidence. Both the Ist appeal as well as the application for additional evidence were dismissed oh the same day though by separate orders. In the application for additional evidence, the defendant/appellant urged that the whole area of Mahilpur including the demised premises has been declared as urban area vide notification No. 3/7/87-LGR/15076 dated 5.6.1987 published in the Punjab Gazette on 19.6.1987. In this notification, khasra numbers of the boundaries of the property declared as urban area have been given mentioning that all the khasra numbers which come within the outer khasra numbers shall be the urban area. The defendant/appellant prayed for proving the said notification through Halqa Patwari, examining him to prove that the property in dispute is also a part of the urban property. The said application was contested by the plaintiff but dismissed by the learned Appellate Court on the ground that in an earlier litigation between the parties before the Rent Controller, it was pleaded by the defendant that the demised premises is located in the rural area, therefore, provisions of East Punjab Urban Rent Restriction Act, 1949 were not applicable and the said petition was dismissed for want of jurisdiction and now in order to prolong the litigation, the plea has been taken by the defendant to prove that the demised premises has come within Municipal Limits by virtue of notification dated 5.6.1987, published on 19.6.1987. The said application was, thus, dismissed observing that "furthermore, even if the property in dispute is now included in the Urban area, he does not oust the Civil Court from passing the decree in the ejectment suit already pending". The appeal was thus also dismissed though without any reference to the order passed in the application for additional evidence on the ground that the defendant had also made an averment in the previous litigation between the parties that the premises in dispute is situated outside the area of Mahilpur and thus, the Civil Court has the jurisdiction.

Learned counsel for the appellant has submitted that at the time of notice of motion i.e. on 12.11.1987, following contentions were noticed by this Court:-

Shri Sarin states that by notification No. 3/7/87-LGR/15076 dated 5.6.1987, published on 19.6.1987, in the Punjab Government Gazette, the area in which the property in dispute is situated, has been declared to be an urban area u/s 2(j) of the East Punjab Urban Rent Restriction Act, 1949 and, therefore, the Civil Court has no jurisdiction to entertain the suit for ejectment of the tenant in view of the Full Bench judgment in Sawan Ram Vs. Gobinda Ram and Another, , and the remedy of the landlord would be to move the Rent Controller.

Notice of motion for 17.12.1997.

The learned counsel states that application for additional evidence was filed before the lower Appellate Court and that application was dismissed by separate order on erroneous grounds on the date the appeal was dismissed. Let the records of the Lower Appellate Court be sent for immediately.

Dispossession of the appellant is stayed till further orders. On the next, date of hearing, the appellant shall bring all arrears of rent.

He has submitted that the Courts below have committed patent error of law in decreeing the suit of the plaintiff despite the fact that the property in dispute has come within the urban area in terms of the notification issued by the Government of Punjab.

The following questions of law have thus been urged by the appellant:-

(i) Whether the Appellate Court erred in dismissing the application for additional evidence sought to be led by the defendant of the subsequent event having a bearing on the merit of the case specially when the additional evidence is not coming from the custody of the defendant/appellant and is a Government record?

(ii) Whether demised premises, if included in the municipal limits by way of notification of the Government to which the provisions of the East Punjab urban Rent Restriction Act, 1949 became applicable, Civil Court still have the jurisdiction to decide the lis between the parties?

In order to answer the aforesaid questions framed by the learned counsel for the appellant, he has referred to a Full Bench judgment of this Court in the case of Sawan Ram Vs. Gobinda Ram and Another, and a Single Bench Judgment of this Court in the case of J.U. Katyal and Another Vs. Krishan Kapur and Others, . As regards the additional evidence, he has submitted that as per Order 41 Rule 27(1)(b) of the CPC, the document sought to be produced and the witness to be examined in support of the document would enable the Court to pronounce the judgment in a more effective manner as the issue involved in this case is with regard to the jurisdiction of the Court.

On the other hand, learned counsel for the respondent has submitted that the rights of the parties are to be seen at the time of the filing of the suit and if the exemption period expires during the pendency of the suit, the rights would be crystallized from the date of filing of the suit. In this regard, he has relied upon a judgment of the Supreme Court in the case of "Sushila Rani v. Mundrai Lal and another" 2005 (12) S.C.C. 316 and decisions of this Court rendered in Basakha Singh Vs. Mani Ram Bhatia, , Smt. Sarla Devi and Others Vs. Hukam Chand, .

I have heard both the learned counsel for the parties and examined the record.

It may be pertinent to mention here that in law, there are two situations where the judgments have been rendered by various Courts about the jurisdiction of the Civil Court in case of extension of the Municipal limits by which the rural properties are included in the urban areas; and in case of expiry of the exemption period during pendency of the suit. Both the situations are altogether different as has been held in Sawan Ram Vs. Gobinda Ram and Another, , Mani Subrat Jain Vs. Raja Ram Vohra, , "Jagat Rai v. Gurdial Singh" (1991-2) 100 P.L.R. 23, "Krishan Lal and another v. Krishan" 2010(2) Rent Control Reporter 87, Ram Narain and Others Vs. Ram Lal and Others, , J.U. Katyal and Another Vs. Krishan Kapur and Others, and Lakshmi Narayan Guin and Others Vs. Niranjan Modak, .

The aforesaid judgments are the cases of extension of Municipal limits wherein it has been held that the moment demised premises, which happened to be a rural property, becomes an urban area by its inclusion within the municipal limits, the Rent Act would be applicable and the jurisdiction of Civil Court would cease to exists.

14 Whereas, where the suit is filed within the exemption period as in the case of Haryana Urban Rent Control and Eviction Act, 1973, there is an exemption u/s (1)(3) of the said Act on the applicability of the Act to any building, the construction of which is completed on or after the commencement of the Act for a period of 10 years from the date of completion. If the suit is filed during the exemption period and the said exemption period expires during the pendency of the suit/appeal, the Civil Court still would have the jurisdiction to continue as it has been held that the rights of the parties are to be seen'' at the time of filing of the suit In this regard, following judgments are relevant to be mentioned, namely, Shri Kishan @ Krishan Kumar Vs. Manoj Kumar Etc. Etc., , Atma Ram Mittal Vs. Ishwar Singh Punia, , Basakha Singh Vs. Mani Ram Bhatia, , Harjit Kaur Vs. Sarabjit Kaur and Another, and "Smt. Sarvjit Kaur and others v. Gurcharan Singh" (2010-4) 160 P.L.R. 154.;

Thus, I am not in agreement with the order of the Appellate Court, who while dismissing the application for additional evidence observed that even if the property is presumed to be included in the urban area, it would not oust the Civil Court jurisdiction from passing the decree because the suit is already pending. Thus, the question of law framed by the appellant as question No. 2 in this case has the substance and is decided in affirmative.

Insofar as the question of additional evidence is concerned, the application has been wrongly dismissed in view of Order 41 Rule 27(1)(b) of the CPC. The appellant has only sought to produce the notification of the State of Punjab by which the Municipal limits of Mahilpur has been extended and had requested to examine the Halqa Patwari in order to prove that the demised, premises has also come within the municipal limits. Since, the document sought to be produced is not coming from the custody of the appellant, therefore, it cannot be said to be fabricated document at this stage and since there is a specific pleading in the written statement that the property, in dispute is not within the rural area, therefore, the additional evidence is also not beyond the pleadings. In view thereof, the application is hereby allowed.

No other point has been urged by counsel for the parties. In view of the aforesaid discussion, the present appeal is hereby allowed. The judgment and decree of the learned Courts below are set aside. The matter is remanded back to Appellate Court with a direction to allow the appellant to examine the Halqa Patwari in order to lead evidence to prove as to whether the demised premises has also been included within the municipal limits of Mahilpur in terms of the notification No. 3/7/87-LGR/15076 dated 5.6.1987 published in the Punjab Gazette on 19.6.1987 and decided the appeal afresh. The parties are directed to appear before the learned District Judge, Hoshiarpur, on 10.3.2014, who would either keep the case with himself or assign it to any Additional District Judge, as he deems fit.