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IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
AMOL RATTAN SINGH, J.
Gurbax Singh - Appellant
Versus
Harminderjit Singh alias Bobby Choudhry - Respondent
CM No. 13086-C-2009 in RSA-4316-2009
Decided On : 16-06-2017
TRANSFER OF PROPERTY ACT, 1882 - SECTION 106 - NOTICE TO TERMINATE TENANCY - SUIT FOR POSSESSION AND RECOVERY OF RENT - ADMISSIBILITY OF RENT AGREEMENT - REGISTRATION ACT, 1908 - SECTION 49 - ORAL LEASE - EVIDENCE ACT, 1872 - SECTION 114 - ADVERSE INFERENCE - ADDITIONAL EVIDENCE - ORDER 41 RULE 27 CPC - INCOME TAX RETURNS - REJECTION OF APPLICATION.
Fact of the Case:
The appellant was a tenant in the shop owned by the respondent. The respondent issued a notice to the appellant to vacate the shop under Section 106 of the Transfer of Property Act, 1882. The appellant did not vacate the shop and the respondent filed a suit for possession and recovery of rent. The appellant contended that the notice was not valid and that he had paid the rent till May 2004. The trial court decreed the suit in favor of the respondent. The first appellate court dismissed the appeal filed by the appellant.
Finding of the Court:
The court held that the notice issued by the respondent was valid and that the appellant was liable to vacate the shop. The court also held that the appellant had not paid the rent from July 2001 to May 2004 and that he was liable to pay the arrears of rent. The court further held that the rent agreement between the parties was not admissible in evidence as it was not registered. The court also held that the application filed by the appellant under Order 41 Rule 27 CPC for leading additional evidence was correctly dismissed by the first appellate court.
Issues: 1. Whether the notice issued by the respondent was valid? 2. Whether the appellant had paid the rent till May 2004? 3. Whether the rent agreement between the parties was admissible in evidence? 4. Whether the application filed by the appellant under Order 41 Rule 27 CPC for leading additional evidence was correctly dismissed?
Ratio Decidendi: 1. The court held that the notice issued by the respondent was valid as it was in accordance with the provisions of Section 106 of the Transfer of Property Act, 1882. 2. The court held that the appellant had not paid the rent from July 2001 to May 2004 as there was no evidence to prove the same. 3. The court held that the rent agreement between the parties was not admissible in evidence as it was not registered and was compulsorily registrable under Section 107 of the Transfer of Property Act, 1882. 4. The court held that the application filed by the appellant under Order 41 Rule 27 CPC for leading additional evidence was correctly dismissed by the first appellate court as the evidence sought to be led was not relevant and was an attempt to delay the proceedings.
Final Decision: The appeal was dismissed.
AMOL RATTAN SINGH, J.
1. This is the second appeal of the defendant, after the suit of the respondent-plaintiff herein (hereinafter referred to as the plaintiff) was decreed in his favour by the learned Civil Judge (Junior Division), Jalandhar, and the first appeal filed by the appellant was dismissed by the learned Additional District Judge, Jalandhar.
2. The facts leading up to the filing of the suit by the respondent plaintiff, seeking possession of a shop and for recovery of Rs.29,700/-, are being taken from the judgments of the learned Courts below.
3. As per the plaintiff, he is the owner of the disputed shop, known as Swami Medical Hall, situated in village Kishangarh, Tehsil and District Jalandhar, fully described in the site plan annexed with the plaint.
The appellant (defendant) was stated to be in possession of the shop as a tenant, it as a 'medical shop' under the aforesaid name, with the monthly rent being Rs.825/-.
As per the plaintiff the tenancy was from month to month, expiring on 15th day of every month.
The defendant was stated to have not paid rent since July 16, 1998, despite repeated requests and demands from the plaintiff. It was further contended that, moreover, the plaintiff did not want to keep the defendant as a tenant any longer.
Consequently he terminated the tenancy by issuing a registered 'notice' on 29.05.2004, under Section 106 of the Transfer of Property Act, 1882, with the termination of the tenancy to come in effect from June 15, 2004. Vide the notice, the plaintiff called upon the defendant to vacate the shop by the aforesaid date and to pay the arrears of rent. That not having been done, it was further contended in the plaint that the possession of the defendant over the shop was illegal and that of a tresspasser.
Yet further, it was contended that though the plaintiff was entitled to recover arrears of rent @ Rs.825/- per month w.e.f. 16.07.1998, however he was restricting his claim for such arrears to the last 3 years only, as the demand for payment of such arrears would not be barred by limitation. Hence Rs.29,700/- was sought to be recovered.
On the aforesaid contentions, Civil Suit no.248/04 was instituted by the plaintiff, on 24.07.2004.
4. Upon notice issued to him, the defendant filed a written statement taking preliminary objections to the effect that the suit was not maintainable, the plaintiff had no locus standi or cause of action and that he (defendant) was not in arrears of rent.
It was further contended that the rate of rent was Rs.700/- per month and not Rs.825/- as claimed by the plaintiff and therefore, he had not come to the Court with clean hands.
Further, it was contended that the notice served upon the defendant was not issued under the provisions of the Transfer of Property Act and that the site plan annexed with the plaint was also “not correct”.
However, on merits, the defendant admitted that he was running a medical shop under the name and style of Swami Medical Hall, but the suit had been filed as a counter blast to the suit filed by the defendant seeking permanent injunction in respect of another shop known as Swami Music & Electric, also taken on rent by the defendant from the plaintiff. In the said suit an interim order in favour of the present appellant defendant had been granted against the plaintiff.
Yet further, it was stated that rent in any case had been paid in May, 2004 as advance rent to the plaintiff, with only the rent for the months of June and July 2004 still due to the plaintiff, with that also having been offered by the defendant, which the plaintiff had intentionally refused to accept, in the presence of one Nirmal Chand.
It was next averred in the written statement that the shop in dispute was taken on rent from Joginder Singh, grand father of the plaintiff, in respect of which a rent note was executed on 30.05.1994, wherein, clearly, rent @ Rs.700/- per month was settled, and with Rs.60,000/- paid as security to Joginder Singh.
After the death of J
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