Punjab-Haryana High Court
Sat Pal vs Joginder Singh on 9 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Review Application No.2-C of 2012 (O&M) in
Regular Second Appeal No.861 of 2005
Date of decision: 9th January, 2012
Sat Pal
... Applicant-Appellant
Versus
Joginder Singh
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. V.K. Jain, Senior Advocate with
Mr. J.L. Malhotra, Advocate for the applicant-appellant.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present application has been filed under Order XLVII Rule 1 CPC seeking review of the judgment pronounced on 23rd December, 2011, whereby a bunch of regular second appeals was decided. The main thrust of the counsel seeking review is that an application bearing Civil Misc. No.40-C of 2010, which was filed to amend the written statement, has not been decided by the Hon'ble Court but the main appeal has been disposed of. The amendment was sought to incorporate the following plea:
"1. That vide Notification dated 02.03.2000, the Gram Panchayat was constituted within the area of Town Sadhaura, where the shop in dispute is located. However, the Haryana Government, vide Notification No.18/3/2006-3CI dated 28.03.2006, had reconstituted the Municipal Committee in Town Sadhaura. Hence, the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are applicable and cause of action, if any, accrued in favour of the plaintiff on the strength of Notification dated 02.03.2000 Review Application No.2-C of 2012 (O&M) in 2 Regular Second Appeal No.861 of 2005 vanished and no Decree can be passed on the basis of the notice issued under Section 106 of the Transfer of Property Act or on account of the institution of the suit."
Learned senior counsel has submitted that by not considering the application for amendment of the written statement filed to the suit, following three vital arguments have escaped attention of this Court:
(1) That the writ petition, assailing the notification dated 28.2.2007 regarding abolition of Municipal Committee, Sadhaura by the State Government was pending adjudication;
(2) That application for amendment of the written statement was not decided; and (3) Thirdly and lastly the cause of notification dated 2.3.2000 stood extinguished on the date of notification dated 28.3.2006 and hence the landlord had to file a fresh suit after issuance of notification dated 28.2.2007. The submissions made by learned senior counsel are not tenable, as a perusal of the judgment dated 23rd December, 2011 demonstrates that in fact all the above arguments had been comprehensively dealt with. But only a formal order of disposing of the amendment application remained to be passed. Thus, while deciding the present application for review, the application seeking amendment of the written statement to the suit also deserves dismissal. However, to allay the any kind of misconception, it will be apposite to quote from the judgment and otherwise from the various orders passed to show as to how the pleas raised and arguments advanced had been dealt with. Review Application No.2-C of 2012 (O&M) in 3 Regular Second Appeal No.861 of 2005 Ground No.1: It has been noticed in the judgment of which review is sought that the present appeals which were ordered to be heard with the writ petitions was sent by a Division Bench to a Single Bench on 26.3.2010. Still for satisfaction of the counsel, it will be necessary to reproduce the order dated 26.3.2010 passed by the Division Bench, in the presence of counsel for the parties, which reads as under:-
"These appeals were ordered to be listed alongwith some writ petitions which have either been dismissed for non prosecution or dismissed as withdrawn.
Accordingly, these appeals may be listed as per the roster.
Photocopy of this order be placed on the file of each connected case."
Even otherwise, this Court in 'Gram Panchayat Bhadson v. State of Punjab and others' 2011(2) RCR (Civil) 88, has placed reliance upon a Division Bench judgment of this Court rendered in 'Mrs. Swaran Lata Jain v. State of Punjab' 2008(4) RCR (Civil) 278, wherein it was held as under:
"8. ... ... ... ... In any case, it is prerogative of the State to decide about the extension of the municipal areas and it is not for the Court to venture unless any action of the State Government or its functionaries is shown to be actuated and influenced by apparent bias and mala fide based upon specific and concrete allegations on the basis of verifiable facts. There is nothing on record. The power of judicial review in such matters has to be exercised with utmost care and has to be circumscribed with constitutional and statutory limitation. Hon'ble Supreme Court in the case of State of U.P. and others v. Pradhan Sangh Kshettra Samiti, 1995(2) RRR 181 : 1995 Review Application No.2-C of 2012 (O&M) in 4 Regular Second Appeal No.861 of 2005 Supp(2) Supreme Court Cases 305 made following observations :
'44. It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the Court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same....' Grounds No.2 and 3: In the application, what is stated for amendment of the written statement to the suit is a legal issue which has already been dealt with, in the judgment under review. This Court had observed in categoric terms that the day when the suit was filed and the judgment was pronounced by the trial Court; the day the first appeal was filed and the same was decided; and the day when Regular Second Appeal was filed and the same was decided; Sadhaura and Radour continued to be the Gram Panchayats.
The facts, which were sought to be incorporated in the written statement by way of amendment as a legal issue have already been considered by this Court by observing as under:-
"Next, it has been vehemently contended that since Sadhaura became a Municipality on 28th March, 2006, the decree passed by the lower appellate Court became in- executable. In support of this, reliance has been placed upon 'Ram Narain and others v. Ram Lal and others' 2004 (1) PLR 634; 'Diwan Chand v. M/s Amar Nath Prem Nath' 1986 (1) RCR (Rent) 521 and 'H. Shiva Rao and another v. Cecilia Pereira and others' 1987(1) RCR (Rent) 273.Review Application No.2-C of 2012 (O&M) in 5
Regular Second Appeal No.861 of 2005 To buttress this argument, further reliance has been placed upon 'Kiran Singh and others v. Chaman Paswan and others' 1954 AIR (SC) 340 to contend that the decree passed by a Court without jurisdiction, is a nullity. It is urged that for the period between 28th March, 2006 to 28th February, 2007 application of the Act was revived and thus, between that period the decree became in-executable and hence, will continue to be a nullity. This issue, to some extent, has been dealt with by a Single Bench of this Court in 'Smt. Sarvjit Kaur v. Gurcharan Singh' 2010 (4) PLR 154 wherein it was held as under:
'7. The suit was instituted on 15.09.2003. On that date, Radaur was admittedly Gram Panchayat and therefore, provisions of the Haryana Rent Act were not applicable to the demised property. Consequently, civil court had jurisdiction to try the ejectment suit. Rights of the parties had to be determined at the time of the institution of the suit. In this context, it may be noticed that even in urban areas, provisions of the Haryana Rent Act are not applicable to a building for ten years after its completion. If ejectment suit is filed during the said period of ten years, civil court continues to have jurisdiction to pass ejectment decree in such a suit, even if provisions of the Haryana Rent Act become applicable to the demised property during the pendency of the suit, on expiry of the initial period of ten years from the date of completion of the building. On the same analogy, in the instant case, provisions of the Haryana Rent Act were not applicable when the suit was instituted and therefore, applicability of provisions of the Haryana Rent Act during the pendency of the suit on declaration of Radaur as municipal town would not divest the civil court of its jurisdiction to try the suit.' Review Application No.2-C of 2012 (O&M) in 6 Regular Second Appeal No.861 of 2005 Furthermore, to counter the arguments raised by counsel for the appellants, counsel for the respondent has relied upon 'Sudhir G. Angur and others v. M. Sanjeev and others' (2006) 1 SCC 141 to urge that the law as existing on the date of institution of the suit or on the date on which the suit comes for hearing is to be considered by the Court. The relevant portion of the judgment rendered in Sudhir G. Angur's case (supra) reads as under:
'11. In our view, Mr. G.L. Sanghi is also right in submitting that it is a law on the date of trial of the suit which is to be applied. In support of this submission, Mr. Sanghi relied upon the Judgment in 'Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass', A.I.R. (1952) Bombay 365, wherein it has been held that no party has a vested right to a particular proceeding or to a particular forum. It has been held that it is well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repealed. It could not be denied that now the Court has jurisdiction to entertain this suit.' In view of the observations made by Hon'ble the Apex Court in Sudhir G. Angur's case (supra), I have no hesitation to reject the arguments advanced by counsel for Review Application No.2-C of 2012 (O&M) in 7 Regular Second Appeal No.861 of 2005 the appellant. The date when the suit was filed and as on today when the appeal is being decided, Sadhaura and Radaur continued to be a Gram Panchayat. Hence, provisions of the Act are not applicable. The date the suit was instituted, it was decided and furthermore, the date when the appeal, which is a continuation of suit, is being decided; Sadhaura and Radaur were, remained and continue to be a Gram Panchayat.
Thus, the question formulated at the outset is answered in favour of the landlord by holding that the area, where the demised shop is situated, cannot be termed as an area falling within the definition of Clause (i) of Section 2 of the Act. Therefore, the provisions of the Act cannot be invoked and the Court cannot take any other evidence to determine the character of the area as urban or rural, except which expressly and specifically falls within the definition of 'urban area' given in the Act. Consequently, there is no merit in the present appeal and the same is hereby dismissed."
Consequently, the proposed amendment of the written statement had already been dealt with, even though no formal orders were passed, therefore, the present application for review, along with all accompanying Civil Misc. applications, is dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 9, 2012 RC/rps