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2015 Supreme(P&H) 1501
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Raj Mohan Singh
RSA No.910 of 2013 (O&M)
Smt. Gurkanwal Virk
v.
M/s Anand Sweets and Restaurant & Anr.
{Decided on 20/10/2015}
For the Appellant in RSA No.910 of 2013:Mr. Sunil Garg, Advocate.
For the Appellant in RSA No.2018 of 2014:Mr. Kanwal Goyal, Advocate
For the Respondent in RSA No.2018 of 2014:Mr. M.L. Saggar, Senior Advocate with Mr. Sunny Saggar, Advocate
For the Respondents in RSA No.910 of 2013:Mr. Anuj Balyan, Advocate
Headnote:Transfer of Property Act, 1882, S.106--Eviction--Notice--Property in petition is exempted from application of Rent Act as construction is not 10 years old--Held;
(i) Provisions of Section 106 of the Act is only meant to show intention of the landlord to evict the tenant during currency of period of 10 years of construction;
(ii) Issuance of notice under Section 106 of the Act is not sine qua non for filing such a suit--Filing of suit itself is a notice to quit to the tenant
(iii) Terms and conditions of the lease agreement have nothing to say once remedy of public law is being resorted to;
(iv) Special Act (Rent Act) could have precedence over general law (TP Act), in the event of expiry of period of 10 years, but once remedy of general law is resorted to, protection to the tenant in terms of Rent Act is not applicable;
(v) Therefore, issuance of 15 days notice and not in terms of recital of the lease deed for giving three months notice become totally redundant in general law--Haryana Urban (Control of Rent & Eviction) Act, 1973 S.3. (Para 38)
Mr. Raj Mohan Singh, J.: - Vide this common judgment two appeals i.e. RSA No.910 of 2013 and RSA No.2018 of 2014 are being disposed of.
2. RSA No.910 of 2013 has been filed against the judgment and decree dated 22.11.2012 passed by District Judge, Panchkula vide which judgment and decree dated 14.01.2012 passed by Civil Judge (Jr. Divn.) Panchkula has been affirmed dismissing the suit of the plaintiff.
3. RSA No.2018 of 2014 has been filed against the judgment and decree dated 19.12.2013 passed by Additional District Judge, Panchkula whereby judgment and decree dated 13.10.2012 passed by the Civil Judge (Jr. Divn.) Panchkula was reversed and suit was dismissed.
4. As common question of law is involved in both the aforesaid appeals, therefore, facts are being taken from first case i.e. RSA No.910 of 2013.
5. Plaintiff has filed suit for ejectment of the defendants from ground floor of basement of SCO No.288, Sector 20 Panchkula and for recovery of mesne profits @ Rs.4500/- per day w.e.f. 29.07.2008 till delivery of possession.
6. It is pleaded by the plaintiff that he is owner of suit land and defendants are tenant therein. Initially rate of rent was Rs.21,000/- per month excluding water and electricity charges. Thereafter rent was increased to the tune of Rs.23,152/- per month. Defendants have paid the rent upto 31.07.2008.
7. Plaintiff alleged that she does not want to keep the defendants as her tenants in the suit property and, therefore notice dated 12.07.2008 was issued to the defendants terminating the tenancy. Notice was received by the defendants, however notice sent at the address of the shop was received back with as refused. Defendants were asked to vacate the premises within 15 days from the date of receipt of notice, but the defendants did not do so. Even after receipt of notice, defendants have deposited an amount of Rs.23,152/- in the account of the plaintiff without consent and knowledge of the plaintiff.
8. The suit property is exempted from applicability of Haryana Rent Act, 1973 in view of exemption clause till 16.03.2010. The plaintiff has also paid property tax for the years 2006-07 and 2007-08. Defendants were also liable to pay the proportionate amount of property tax, but they have refused to do so. In this way an amount of Rs.27,258/- was claimed to be payable towards property tax. Since the plaintiff has terminated the tenancy, therefore, possession of the defendants has become illegal and they are liable to pay mesne profits @ 4500/- per day w.e.f. 29.07.2008 till delivery of actual possession to the plaintiff.
9. The suit was contested by the defendants by taking pleas in preliminary objection as well as on merits. Relationship of landlord and tenant has been admitted. Defendants claimed that their tenancy has not been terminated by way of any notice, no notice was ever received by them. The defendants are not liable to pay the property tax. They further alleged that they have already paid rent upto July 2008 and have been regularly offering the rent, but plaintiff has not accepted the same against receipt.
10. Defendants also alleged that the plaintiff had also taken post dated cheques in advance till 19.06.2010 and this fact was admitted by the plaintiff in written statement filed by her in another suit. The defendants claimed that they are not in arrears of any rent. They also claimed that they have already spent more than Rs.10 lacs on maintenance and fixtures in the suit property after taking loan from the Bank.
11. After filing of replication, trial Court proceeded to frame following issues:-
“1. Whether plaintiff is entitled to the decree of ejectment of the defendants from the demised premises? OPP
2. Whether the plaintiff is entitled for recovery of damages, mesne profit, commercial tax alongwith damages/mesne profit? OPP
3. Whether the suit is not maintainable in the present form and the plaintiff has no locus standi to file present suit? OPD
4. Relief.”
12. The attempt of the de
