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RAKESH BHARGAV versus AKHIL BHARTIYA BHARGAV SABHA

High Court of Punjab and Haryana, Chandigarh

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RAKESH BHARGAV v. AKHIL BHARTIYA BHARGAV SABHA - RSA-3906-2004 [2005] RD-P&H 46 (13 July 2005)

Regular Second Appeal No.3906 of 2004 [1] Rakesh Bhargav v. Akhil Bhartiya Bhargav Sabha ...

Present: Mr.Arun Bansal, Advocate

for the appellant.

...

M.M.KUMAR, J.

This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, `the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the defendant-appellant is liable to be ejected from the demised shop. It has further been found that the plaintiff- respondent which is a society registered under the Registration of Societies Act has proved the termination of tenancy by issuing a statutory notice under Section 106 of the Transfer of Property Act, 1882 (for brevity, `the Act') and the service of the same was effected on the defendant-appellant. It has also been found that there was a rent note executed between the parties on 19.5.1987 (Ex.P3). The plea of the defendant-appellant that no decree of ejectment against him could be passed after the expiry of a period of 10 years irrespective of the fact as to whether on the date of institution of the suit, the period of 10 years had not yet passed.

Brief facts of the case are that the plaintiff-respondent filed Civil Suit Regular Second Appeal No.3906 of 2004 [2] No.330 of 1996/2001 instituted on 30.10.1996/28.9.2001 seeking ejectment of the defendant-appellant from the shop in dispute. Recovery of Rs.6075/- along with interest was also claimed as rent and penalty for user. The demised shop was stated to have been considered in the year 1987 and, thus, on the date of filing the suit, the period of 10 years had not expired. In other words, the building was not subjected to the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, `Rent Act') . The tenancy of the defendant-appellant was terminated by issuing a notice under Section 106 of the Act. The notice was sent on 24.7.1996 which was duly served. The arrears of rent were claimed w.e.f 1.5.1988 but the arrears were time barred. Therefore, the plaintiff-respondent claimed the arrears w.e.f. July, 1993. Alleging that neither the possession was delivered nor the arrears were paid, the stand of the defendant-appellant was that the tenancy was not terminated by serving correct notice, facilities were not furnished as promised and that at the time of construction of the shop, the defendant-appellant had paid a sum of Rs.20,000/- to Rs.25,000/- to the plaintiff- respondent. The defendant-appellant has further claimed a damage of Rs.2 lacs.

In addition, it was submitted that during tenancy of the suit, a period of 10 years had passed and, therefore, the provisions of the Rent Act would be attracted and no suit was competent. The trial Court decreed the suit of the plaintiff-respondent in its favour with costs to the effect that the defendant-appellant was liable to be ejected and he was directed to hand over the demised shop to the plaintiff- Regular Second Appeal No.3906 of 2004 [3] respondent within a period of two months. He was further directed to pay a sum of Rs.6075/- plus amount of Rs.168.75 p.m. From the date of filing the suit till the exact date of handing over the possession. It is also appropriate to mention that during the pendency of the suit, the plaintiff-respondent filed an application under Order XV Rule 5 of the Code to strike of the defence of the defendant-appellant on account of non payment of rent w.e.f. 1.9.1998 to 31.7.2001. The total rent in respect of 33 months amounting to Rs.5568.75 along with interest at the rate of 9 per cent per annum amounting to Rs.1378/-. In the reply dated 24.1.2001, the defendant-appellant admitted that he had deposited the rent upto October, 1998.

However, he assigned the reasons of non payment of further rent by pleading that no amenities by the plaintiff-respondent were provided. On 24.1.2002 the application filed by the plaintiff-respondent under Order XV Rule of the Code was allowed and consequently the defence of the defendant-appellant was struck off.

The defendant-appellant was proceeded ex parte on 2.3.2002 and the findings were recorded in favour of the plaintiff-respondent. Consequently, the defendant- appellant was ordered to be ejected and pay the arrears of rent.

The lower Appellate Court on appeal has affirmed the view taken by the trial Court and the same reads as under:- "14. As already stated that tenancy is not disputed by the defendant- appellant. Rent agreement executed between the parties is Ex.P3.

This is also not disputed that notice dated 24.7.1996 was served upon Regular Second Appeal No.3906 of 2004 [4] the defendant under Section 106 of the Transfer of Property Act, terminating his tenancy. Copy of said notice is Ex.P4 well proved on record. The fact that defendant received his notice is evident from the fact that he even replied the said notice. Reply to notice is Ex.P7.

15. It may further be noted that it is not disputed by the defendant that construction of the shop in question was completed in the year

1987. Present suit was filed on 30.10.1996 i.e. Within a period of 10 years from the date of completion of construction of the shop. In these circumstances, there can be no dispute that provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 were not applicable to the case in view of Section 1(3) of the said Act." It is also pertinent to mention that the lower Appellate Court also refused to condone the delay on the ground that the application for obtaining certified copy of the judgment annexed with the appeal was filed on 15.4.2002 i.e.

after the expiry of period of 30 days prescribed for filing the appeal. Rejecting the plea of the defendant-appellant seeking condonation of delay, the lower Appellate Court has held as under:-

"12. Impugned judgment and decree was passed on 2.3.2002. A period of 30 days is prescribed for filing the appeal. Perusal of certified copy of judgment annexed with the appeal reveal that copy for the judgment was applied by the defendant on 15.4.2002 and then Regular Second Appeal No.3906 of 2004 [5] it was supplied to him on 19.4.2002. Meaning thereby that even the certified copy of the judgment and decree was applied by the defendant after expiry of the period of limitation meant for filing the appeal. The plea of appellant that he was suffering from Rheumatic in both his leg and so could not contact his counsel is absolutely not plausible in the absence of any medical evidence. Even otherwise, conduct of the defendant-appellant reveal that after his defence was struck off by learned Lower Court on 24.1.2002, none appeared for him on 2.3.2002 for final consideration and so he was to be proceeded exparte. Defendant can not be given benefit of his own fault. After appraising the entire circumstances of the case, I am of the considered opinion that no cogent reason is made out to condone he delay in filing this appeal. As such, I hold that this appeal is liable to be dismissed at the outset, being barred by limitation." The defendant-appellant remained unsuccessful before the lower Appellate Court in arguing that the provisions of the Rent Act became applicable on the expiry of 10 years and the same would be applicable to the present case as all subsequent events after the filing of the suit were required to be taken into consideration. In this regard, the lower Appellate Court has placed reliance on the judgment of the Supreme Court in the case of Atma Ram v. Ishwar Singh, AIR 1988 SC 2031 and another judgment in the case of Shri Kishan alias Krishan Regular Second Appeal No.3906 of 2004 [6] Kumar and others v. Manoj Kumar and others, (1998)2 SCC 710.

I have heard Mr.Arun Bansal, learned counsel for the defendant- appellant at a considerable length.

Having heard the learned counsel, I am of the view that there is no merit in this appeal. Both the Courts below on merits have taken the view that relationship of landlord and tenant has been proved as there is a rent note dated 19.5.1987 (Ex.P3) which has been duly proved. It has further been found that the demised shop was constructed in the year 1987, the suit was filed before the expiry of period of 10 years and, therefore, the provisions of the Rent Act were not applicable. The defendant-appellant has committed default in making the payment of arrears of rent and, therefore, the defence has been rightly struck off under Order XV Rule 5 of the Code vide order of the trial Court dated 24.1.2002.

The argument of Mr.Bansal that the lower Appellate Court should not have dismissed the appeal as being time barred because there were plausible reasons disclosed in the application. According to the learned counsel, the defendant- appellant was suffering from Rheumatic pain which should have been accepted as a sufficient ground by applying the principle of liberal construction. The argument raised is wholly without merit because the lower Appellate Court after declining to condone the delay has proceeded to consider the submission of the defendant- appellant on merits. The appeal has, therefore, not been dismissed on the ground of limitation alone.

Regular Second Appeal No.3906 of 2004 [7] The other argument that the period of 10 years had passed after the institution of the suit and the same would attract the provisions of the Rent Act would also not require any serious examination because the Supreme Court in the case of Shri Kishan (supra) has taken the view that a suit instituted during the period of exemption could be continued and such a decree could be executed. In the aforementioned case Section 1(3) of the Rent Act was under consideration and the same reads as under:-

"1.(3) Nothing in this Act shall apply to- (i) any residential building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion."

Rejecting the argument that a decree of ejectment passed after the expiry of 10 years period in a suit institution within the exemption period was not executable, their Lordships observed as under:- "8. There is no provision in the Act taking away the jurisdiction of a civil court to dispose of a suit validly instituted.

There is also no provision preventing the execution of a decree passed in such a suit. Section 13(1) does not expressly refer to execution of a decree for possession. On a reading of all the provisions of the Act, it is evident that it has not prevented a civil Regular Second Appeal No.3906 of 2004 [8] court from adjudicating the rights accrued and the liabilities incurred prior to the date on which the Act became applicable to the building in question. If the legislature had intended to take away the jurisdiction of the civil court to decide a suit which had been validly instituted, it would have been worded differently. The purpose for which the exempted is granted statutorily under Section 1(3) is to encourage construction of new buildings. That purpose would be defeated if the owner of the building is deprived of his right to get possession of the building unless he gets a decree within a period of ten years from the date of its completion. In fact the logical consequence of the argument of the appellants if accepted would be that even if a decree is obtained by the landlord within ten years from its completion it cannot be executed after the expiry of the said period of ten years as such execution would not be in accordance with the provisions of the Act. It is common knowledge that a proceeding in a civil court for recovery of immovable property cold be dragged on by the defendant easily for a period of ten years or more and thereby any tenant whose tenancy had been terminated validly before the suit would successfully make the proceeding infructuous by prolonging the litigation. The argument of the appellants cannot be accepted as otherwise the purpose of exemption Regular Second Appeal No.3906 of 2004 [9] would get defeated."

In support of the aforementioned view, reliance was placed on the earlier judgments in the cases of Amar Nath Basheshar Dass v. Tek Chand, (1972)1 SCC 893; Ram Saroop Rai v. Lilavati, (1980)3 SCC 452; Mohinder Kumar v. State of Haryana, (1985)4 SCC 221; Nand Kishore Marwah v.

Samundri Devi, (1987)4 SCC 382; Atma Ram Mittal's case (supra) and Kesho Ram & Co. v. Union of India, (1989)3 SCC 151. The contrary view taken in the case of Vineet Kumar v. Mangal Sain Wadhera, (1984)3 SCC 352 was over- ruled.

The judgment of the Supreme Court in the case of Om Prakash Gupta v. Ranbir B. Goyal, (2002)2 SCC 256 on which reliance has been placed by learned counsel for the defendant-appellant would not be attracted to the facts and circumstances of the present case. It is true that subsequent events after filing of the suit can be taken into consideration by the Courts yet it has been made subject to certain conditions. Giving details of the conditions in which subsequent events can be considered, it has been observed by their Lordships as under:- "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the Regular Second Appeal No.3906 of 2004 [10] relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders [(1975)1 SCC 770] this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be linked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific Regular Second Appeal No.3906 of 2004 [11] provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed."

When the principles laid down by the Supreme Court in the aforementioned judgments are applied to the facts of the present case, it becomes evident that firstly no general principle that subsequent events can be taken into consideration could be applied to cases where injustice may result. In such a case, the tenant could be able to successfully defeat the rights of his landlord by tossing him around from one litigation to another. It is for these reasons that another principle has been made applicable to these type of cases, namely, that rights of the parties have been crystalised on the date of filing of the suit.

In view of the above settled principle of law and the concurrent findings of fact recorded by both the Courts below, nothing remains to be adjudicated in this appeal which may warrant its admission in exercise of jurisdiction under Section 100 of the Code. The appeal is wholly without merit and, therefore, the same is dismissed.

( M.M.KUMAR )

October 25, 2005. JUDGE

RC

Regular Second Appeal No.3906 of 2004 [12]


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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