CIVIL APPEAL 93 of 2011 on 1 November 2002

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

R.S.A. No. 93 of 2011.Reserved on: 12.07.2011.Decided on: 19.07.2011.

_____________________________________________________

Khem Raj.

…Appellant.

-Versus-

Jaishi Ram.

…Respondent.

Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?[1] No.

__________________________________________________________ For the appellant. : Mr. Vikas Bhardwaj, Advocate. For the respondent. : Mr. Ajay Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge:

This Regular Second Appeal is directed against the judgment and decree dated 25.09.2010, passed by the learned District Judge, Kangra at Dharamshala (H.P.) in Civil Appeal No. 31-K/XIII-2009.

2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit for possession by eviction of appellant-defendant (hereinafter referred to as “the defendant” for brevity sake) from the shops marked ABCD and CDEF, comprised in Khata No. 42, Khatauni No. 87, Khasra No. 51, measuring 0-09-53 hectares as per Jamabandi for the year 1997-1998 (hereinafter referred to as “the demised premises) and for recovery of `54,000/-, i.e., arrears of rent w.e.f. 01.11.2002 till 30.04.2004 @ `3,000/- per month.

1Whether the reporters of the local papers may be allowed to see the judgment? No.

According to him, the defendant was habitual defaulter and he was not paying the rent to him. He served a notice upon the defendant on 25.03.2004 under Section 106 of the Transfer of Property Act, directing him to make the payment of arrears of rent and to hand over the vacant possession of the demised premises.

3. The suit was contested by the defendant. According to him, the rent was `1800/- and not `3000/-. According to him, at the time of creation of tenancy, he had pad a sum of `60,000/- as security to the plaintiff on 04.11.2002 and the same was agreed to be returned by the plaintiff to him at the time of vacation of the premises. He denied the allegations with regard to non-payment of rent. However, he has admitted the issuance of notice dated 25.03.2004.

4. The replication was filed by the plaintiff. The issues were framed on 03.01.2005. The trial Court decreed the suit for possession of the demised premises, subject however, to the payment of `27,600/-, i.e., the balance security amount due from the plaintiff to the defendant, after deducting a sum of `32,400/- being the arrears of rent w.e.f. 1.11.2002 to 30.4.2004 @ `1800/- p.m.. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala (H.P.). The same was dismissed on 25.09.2010. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial questions of law:

“1. Whether the impugned judgments and decrees are not sustainable in the eye of law being contrary to facts of the case and being de hors the evidence available on record? are not sustainable in the eye of law being contrary to facts of the case and being de hors the evidence available on record?

2. Whether the two Courts below were justified in holding that the termination of tenancy of the appellant-defendant was valid in the eye of law, without there being any refund of security of `60,000/-, received by the respondent-plaintiff from the appellant-defendant? holding that the termination of tenancy of the appellant-defendant was valid in the eye of law, without there being any refund of security of `60,000/-, received by the respondent-plaintiff from the appellant-defendant?

5. Mr. Vikas Bhardwaj, learned counsel for the appellant has argued that both the Courts below have misred and mis-appreciated the evidence led by the parties. According to him, the notice Ex. PW-2/A was defective. He also argued that his client has spent a sum of `1,00,000/- for renovation and this amount was to be adjusted.

6. Mr. Ajay Sharma, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below.

7. I have heard the learned counsel for the parties and gone through the pleadings carefully.

8. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

9. Plaintiff has appeared as PW-1. According to him, the shops were rented out to the defendant. The rent of big shop was `2000/- and the rent of small shop was `1000/- per month. He has admitted that a sum of `60,000/- was received by him as advance from the defendant. He further stated that he requires the shop for settling his children. He has served a rent notice upon the defendant. He has also admitted that a sum of `60,000/- has not been returned to the defendant.

10. PW-2 Suresh Chaudhary, learned Advocate has served a legal notice upon the defendant on 25.03.2004 vide Ex. PW-2/A, postal receipt of which is Ex. PW-2/D and acknowledgment is Ex. PW-2/C.

11. Defendant Khem Raj has appeared as DW-1. According to him, there were two shops which were let out to him by the plaintiff for `1800/- per month. He stated that he had paid a sum of `60,000/- to the plaintiff as advance on 04.11.2002. He has further stated that the plaintiff has not refunded the security amount and according to him, his tenancy has not been terminated in accordance with law. He has tried to pay the arrears of rent to the plaintiff through money order and cheque, but the same were refused by the plaintiff. He has further stated that he did not refuse to pay the rent. He has deposed that the notice was received by him and he has replied to the same. He has further admitted that he has not vacated the disputed premises despite the receipt of notice.

12. DW-2 Om Saran has deposed that he knew the parties. He has deposed that receipt Ex. DW-2/A bears his signatures. According to him, it was agreed between the parties that when plaintiff will get the shops vacated, he will return a sum of `60,000/- taken by the plaintiff towards the security amount to the defendant.

13. DW-3 Kamlesh Chaudhary has filed the reply to the notice issued under Section 106 of the Transfer of Property Act vide Ex. PW-2/A, postal receipt of which is Ex. PW-2/D and the acknowledgment is Ex. PW-2/C.

14. The demised premises are situated in Gram Panchayat, thus, the provisions of H.P. Urban Rent Control Act are not applicable. It is in these circumstances that the plaintiff has got the notice issued to the defendant under Section 106 of the Transfer of Property Act through PW-2 Suresh Chaudhary vide Ex. PW-2/A. The receipt and acknowledgment are duly proved. This notice was replied by DW-3 Kamlesh Chaudhary vide Ex. DW-3/A.

15. Mr. Vikas Bhardwaj, learned counsel for the appellant has failed to point out any defect in the notice issued under Section 106 of the Transfer of Property Act. It has been duly proved by the plaintiff. The contention of Mr. Vikas Bhardwaj, learned counsel that his client has spent a sum of `1,00,000/- for renovation of the demised premises, has not been duly proved. The defendant has admitted that he has not vacated the premises even after receipt of the notice. DW-2 has duly proved that a sum of `60,000/- has been advanced by the defendant to the plaintiff as per receipt Ex. DW-2/A. What is contained in Ex. DW-2/A, is that a sum of `60,000/- will be refunded to the defendant at the time of vacation of the premises. It is also borne out from the records that the defendant has not paid the arrears w.e.f. 01.11.2002 to 30.04.2004. The rent for both the shops was `1800/- and not `3000/-, as claimed by the plaintiff. It is in these circumstances that the trial Court has ordered refund of `27,600/- by the plaintiff to the defendant after deducting a sum of `32,400/- being the arrears of rent w.e.f. 01.11.2002 to 30.04.2004 @ `1800/- per month. The tenancy stood terminated after the issuance of notice under Section 106 of the Transfer of Property Act vide Ex. PW-2/A, which was duly acknowledged by the defendant. Both the Courts below have rightly appreciated the oral as well as documentary evidence led by the parties and the amount has been ordered to be refunded by the plaintiff to the defendant after adjusting the arrears of rent from `60,000/-, which has been received by the defendant vide receipt Ex. DW-2/A.

16. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.

(Rajiv Sharma) Judge