Punjab-Haryana High Court
Jasbir Singh vs Pritam Kaur on 7 September, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
R.S.A. No.2202 of 2010 (O&M) -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No.2202 of 2010 (O&M)
Date of decision:07.09.2010.
Jasbir Singh ...Appellant
Versus
Pritam Kaur ...Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Anil Chawla, Advocate,
for the appellant.
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RAKESH KUMAR JAIN, J.
The defendant is in second appeal against the judgment and decree of the Courts below by which suit of the plaintiff for possession by way of ejectment of the defendant from the shop in dispute, has been decreed.
In short, the plaintiff is the owner of the shop in dispute which was let out to the defendant about 20 years back by way of an oral agreement. It was alleged that the present rate of rent of the shop in dispute is ` 600 per month which was to be paid by the defendant between 1st to 5th day of every month. The defendant has been running the shop under the name and style of "Sardar Electric". The plaintiff terminated the tenancy of the defendant by serving a legal notice dated 23.04.2007 as the defendant was not paying the rent regularly and the tenanted premises were required by the plaintiff for her personal use. The said notice was not replied by the defendant. In the written statement, the defendant had alleged that the shop in dispute was on rent with him @ ` 600 per month.
R.S.A. No.2202 of 2010 (O&M) -2-****** He alleged that he has been paying the rent regularly, but the plaintiff has not issued receipt. It was also alleged that the defendant has deposited a sum of ` 20,000 as security with the plaintiff in the month of January 2005, which is refundable on vacation of the shop in dispute. It was denied that the shop in dispute is required by the plaintiff for her personal use. On the pleadings of the parties, issues were framed on 07.12.2007. The plaintiff examined Kuldeep Singh Draftsman as PW1, herself appeared as PW2 and examined Daljit Kaur as PW3, whereas, the defendant examined Jaspal Singh as DW1 and himself appeared as DW2.
Learned Courts below, after appreciating the evidence on record, decreed the suit of the plaintiff. The learned First Appellate Court had observed that, admittedly, the plaintiff is the landlady and owner of the shop in dispute, whereas defendant No.1 was the tenant @ ` 600 per month. The tenancy stood terminated by serving notice under Section 106 of the Transfer of Property Act, 1882 [for short "the Act"] which was sent to the defendant through registered post. The registered letter was never received back, therefore, there was a presumption that the notice has been duly served upon the defendant. The learned First Appellate Court has also relied upon a decision of the Supreme Court in the case of Jaswant Rai Soni Vs. Parkash Mal, 2005(2) Apex Court Judgments, 440 (SC) to the effect that there is no legal requirement for issuance of a notice under Section 106 of the Act before institution of eviction petition. It was held that with the service of notice, tenancy of the defendant stood terminated and the plaintiff was entitled to possession of the shop in dispute. As regards arrears of the rent, the plaintiff appeared as PW2 and admitted that the defendant has paid rent of the demised shop up to April 2007. It was, thus, held that the plaintiff is not entitled to recover arrears of rent. As regards mesne profits for illegal use and occupation of the demised shop, the said finding was also partly reversed by the learned First Appellate Court to hold that the plaintiff is entitled to mesne profit from the month of May 2007 onwards till the vacant possession of the shop in dispute is handed over to the plaintiff.
R.S.A. No.2202 of 2010 (O&M) -3-****** In nutshell, the Courts below decreed the suit but the learned First Appellate Court declined recovery of arrears of mesne profits from April 2007 and allowed mesne profits from May 2007 onwards till the vacant possession of the shop in dispute is handed over to the plaintiff.
Aggrieved against the judgment and decree of the Courts below, the present appeal has been preferred by the defendant, in which no question of law much-less substantial has been raised except for challenging the judgment of the Courts below on the ground of perversity; the suit is not maintainable and whether the statutory notice required under Section 106 of the Act was served. Insofar as the question of service of notice is concerned, it is a question of fact which has been decided by the Courts below that the notice has been served. Therefore, this question does not arise which has been raised by learned counsel for the appellant and in respect of the perversity in the judgment of the Courts below learned counsel for the appellant failed to show as to how the evidence available on record has been misconstrued by the Courts below which has caused prejudice to the appellant.
Thus, in view of the above discussion, I do not find any merit in the present appeal and as such, the same is hereby dismissed, however, without any order as to costs.
September 07, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE