Punjab-Haryana High Court
Varinder Kumar Jain (Ali Panwala) vs Parveen Jain on 8 May, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.3419/2010(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.3419/2010(O&M)
Date of decision: 08.05.2012.
Varinder Kumar Jain (Ali Panwala)
.........................Appellant.
v.
Parveen Jain
..........................Respondent.
CORAM:HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Mr.Jagdish Manchanda,Advocate for the defendant/
appellant.
Mr.Mahabir Sandhu,Advocate for the plaintiff/
respondent.
Jaswant Singh,J(Oral).
Defendant/appellant is in second appeal against the judgment and decree dated 9.6.2009 passed by the learned Additional Civil Judge (Senior Division) Jagadhari whereby the suit for possession by ejectment and mesne profits of the shop in possession of the defendant/appellant was decreed; and further against the judgment and decree dated 29.7.2010 passed by the learned appellate court upholding the decree passed by the learned trial court.
Facts in brief are that respondent Parveen Jain (hereinafter RSA No.3419/2010(O&M) 2 referred to as the plaintiff) filed a suit for ejectment of the appellant Varinder Kumar Jain (hereinafter referred to as the defendant) from the shop described in the plaint on termination of the tenancy vide notice dated 6.1.2005, arrears of rent and mesne profits were also claimed. The suit was contested inter alia on the issue of jurisdiction as it was asserted that the demised premises situated in Village Sadhaura was urban area where municipal limit had been extended and thus amenable to the provisions of Haryana Urban (Control of Rent & Eviction) Act,1973. The learned trial court found that the notice under Section 106 of Transfer of Property Act,1882 terminating the tenancy was validly served upon the defendant and since at the time of filing of the suit and on the date of passing of the decree there was no notification operating over the area as being within the limits of a municipal committee hence the suit was maintainable since the notification for inclusion of the area within the municipal limit of Sadhaura establishing Municipal Committee Sadhaura was issued after the institution of the suit and was withdrawn before the passing of the decree. The judgment passed by the trial court was upheld by the appellate court.
This court vide order dated 13.10.2010 admitted the present appeal filed by the defendant in view of the question of law raised and ordered the same to be heard alongwith RSA No.863/2005.
Respondent/plaintiff has filed CM No.4279-C/2012 praying for dismissal of the instant second appeal in view of the judgment dated RSA No.3419/2010(O&M) 3 23.11.2011 (Annexure A1) passed by this Court in RSA No.863/2005 alongwith the connected RSAs raising similar questions of law. It is further submitted in the application that even the SLP filed against the judgment (Annexure A1) has been dismissed by Hon'ble the Supreme Court vide orders dated 27.2.2012(A2).
Notice of this application was issued to the counsel for the defendant/appellant.
Counsel for the appellant very fairly concedes that the law point raised in the present appeal stands fully covered by the judgment and decree dated 23.12.2011 passed by this Court in RSA No.863/2005 (A1) and other connected appeals. He, however, prays for sometime for handing over the vacant possession in terms of the Supreme Court order dated 27.2.2012(A2).
In response, counsel for the respondent/plaintiff submits that he has no objection for grant of some reasonable time, however, he prays for a direction to the defendant/appellant for clearing the arrears of mesne profit @ Rs.31.25 per month from the date of termination of the tenancy i.e. 23.1.2005 till today in terms of the decree passed by the trial court dated 9.6.2009.
Learned counsel for the defendant/appellant submits that vide challan dated 1.9.2011 the arrears of rent uptil 1.9.2011 in terms of the decree passed by the trial court have already been paid before the trial court. He however, undertakes to deposit the remaining arrears of rent in terms of the decree due till 30.4.2012 to the plaintiff respondent RSA No.3419/2010(O&M) 4 before the trial court on or before 31.7.2012.
In view of the above circumstances, the present second appeal is disposed of in terms of the judgment dated 23.12.2011(A1) passed in RSA No.863/2005. It is further directed that the defendant/appellant shall handover the vacant possession of the demised premises to the plaintiff on or before 31.12.2012. Defendant shall also pay a sum of Rs.1000/- per month due w.e.f. 1.5.2012 till he vacates the demised premises. Defendant shall also file an undertaking by way of affidavit before the trial court before 31.7.2012 in respect of handing over of vacant possession of the demised premises and payment of compensation w.e.f. 1.5.2012 for the use and occupation of the demised premises. It is clarified that if no undertaking is filed or arrears of rent in terms of the decree are not cleared before the aforesaid stipulated time, the plaintiff shall be entitled to the execution of the decree forthwith with no further extension of time.
Disposed of.
Since the main appeal itself stands disposed of CM Nos.4279-C/2012, 5121-C/2012 also stand disposed of.
08.05.2012. (Jaswant Singh) joshi Judge