Punjab-Haryana High Court
Om Parkash And Anr. vs Dr. J.K. Mehta And Anr. on 13 February, 1990
Equivalent citations: (1990)98PLR145
JUDGMENT Gokal Chand Mital, J.
1. Dr. J. K. Mehta, filed a suit on 14-2-1984 for ejectment against Om Parkash tenant on the pleas that the shop was constructed in the year 1977 and was let out to Om Parkash vide rent note dated 3-9-1977 with effect from 1-8-977, and the Haryana Urban (Control of Rent and Eviction) Act 1973 (hereinafter referred to as the Act) was not applicable to the premises in dispute for a period of 10 years from the date of construction. Before filing the suit a notice under Section 106 of the Transfer of Property Act, terminating the tenancy was served on the tenant. In the suit, Som Parkash, brother of the tenant and another person were impleaded as defendants as sub-tenants.
2. In the original written statements filed by he defendents, it was inter alia pleaded that all the defendants were tenants denied that the shop was constructed in the year 1977 denied that the Civil Court bed jurisdiction to try the suit and pleaded that the Civil Court had nO jurisdiction in view of the Act.
3. The trial Court by judgment and decree dated 27-7-1987 dismissed the suit only on the findings that 10 years had elapsed during the pendency of the suit and after expiry of 10 years. Civil Court had no jurisdiction to adjudicate into the matter and the same has to be decided under the Act.
4. On Landlord's appeal, the learned Additional District Judge vide judgment and decree dated 21-12-1988 recorded findings on all matters is favour of too landlord and held that in view of the latest decision of the Supreme Court in Atma Ram Mittal v. Ishwar Singh Punia, A. I. R. 1988 S. C. 2031 the suit is to be filed within 10 years from the completion of the construction and the expiry of 10 years during the pendency of the suit does not affect the right of the landlord to continue the suit, as the rights of the parties crystalized on the date of filling the suit. Since construction was made within 10 years of the filing of the suit, it was held that the Civil Court had the jurisdiction.
5. During the pendency of the proceedings before the Appellate Court, Om Parkash tenant filed a lengthy application for amendment of the written statement. The application was dismissed by that Court but on revision this Court passed an agreed order to the following effect :--
"...It is now agreed between the learned counsel for the parties defendant No. 1 may be allowed to plead that he and Som Parkash were tenants in the shop in dispute. It may be made clear that Mr. Jain says that the plaintiff does not admit that he let out the shop to Om Parkash and Som Parkash. This matter will be gone into and decided by the Court in the main Case. Consequently, I accept the revision and allow defendant No. 1 Petitioner to plead that he along with Som Parkash was the tenant in the shop "in dispute. The parties are directed to appear in the trial Court on 28th August, 1985. No Order as to costs".
6. After the aforesaid order, twice opportunity was granted to the tenants to amend the written statement in conformity with the High Court order but both the times he wanted to plead that partnership firm M/s Karan Purchasing Complex was the tenant. Since the amended written statements were not in conformity with the order passed by this Court, the amendment was disallowed, and the matter was decided by the lower appellate Court on the basis of the original written statement.
7. As to which defendant was the tenant, the lower appellate Court recorded a finding that Om Parkash defendant alone was the tenant. Rent note Exhibit P-2 shows that Om Parkash took the premises on rent, although he mentioned that he was partner of the firm named above. This does not mean that the firm became the tenant nor could such a plea be allowed to be raised in view of the agreed order passed by this Court in revision.
8. The lower appellate Court also found that notice under Section 106 of the Transfer of Property Act was valid. In view of the aforesaid findings, the lower appellate Court allowed the appeal and after setting aside the judgment and decree of the trial Court granted the decree of possession in favour of the plaintiff and against the defendants. This is second appeal by Om Parkash and Som Parkash defendants.
9. The findings recorded by the lower appellate Court about the date of construction, the suit having been filed within 10 years there of and the jurisdiction of the Civil Court to try the suit has not been disputed. The main challenge is to the refusal of the lower appellate Court in permitting the amendment of the written statement.
10. As a corollary it was argued that in case the amendment is allowed and it is held that the firm was the tenant, then notice issued under Section 106 of the Transfer of Property Act would not be valid and this would be an additional ground to reverse the judgment and decree of the lower appellate Court.
11. Adverting to the main point raised in the appeal, there is no doubt that it is devoid of merit. Before this Court in revision, as mentioned above, it was agreed that Om Parkash defendant would be allowed to plead that he and Som Parkash were the tenants in the shop whereas in both the applications Om Parkash wanted to raise the plea that shop was let out to M/s Karan Purchasing Complex a partnership firm The lower appellate Court was right in declining the amendment which went beyond the scope of he order of this Court. Therefore, the only point to be considered would be whether Om Parkash alone is the tenant or all the defendants are the tenants.
12. In this behalf the rent note Exhibit P-2 assumes importance which shows that Om Parkash took the premises in dispute although described himself to be partner of the firm, referred to above, and in view of the aforesaid documentry evidence, it cannot be pleaded that Om Parkash along with Om Parkash and third defendant had taken the premises on rent. There is no other evidence on this record which can be ralied upon in view of the rent note executed by Om Parkash defendant.
13. It was then argued that rent receipts are in the name of the firm. Even the rent shows that Om Parkash was the partner of the firm. Therefore, receipts issued by Om Parkash on the pad of the firm would not change the factual position that Om Parkash alone was the tenant.
14. It has also come in evidence that the third deferdant was included as a partner in the firm on 6-1-1984 as is clear from a copy of the partnership deed at page 91 of the trial Court record. Accordingly, I affirm the finding of the lower appellate Court that Om Parkash alone was the tenant and the amendment was rightly rejected.
15. Since Om Parkash alone was the tenant notice under Section 106 of the Transfer of Property Act issued to him is valid. This finding of the lower appellate Court is also endorsed.
16. For the reasons recorded above, the appeal is devoid of merit and is dismissed with cost.