VINOD KUMAR SEHGAL Vs. PUSHPA DEVI

JUDGEMENT

(1.) VINOD Kumar Sehgal is defendant in the trial Court and he has filed the present regular second appeal and it has been directed against the judgment and decree dated 17.2.2000 passed by Addl. District Judge, Gurgaon, who affirmed the judgment and decree dated 4.5.1999 passed by the Court of Civil Judge (Junior Division), Gurgaon, which decreed the suit of Pushpa Devi plaintiff for possession with respect to the shop in question.

(2.) THE brief facts of the case can be gathered in the following manner :- Suit was filed by Smt. Pushpa Devi for possession by way of ejectment against the defendant-appellant on 26.8.1992 claiming possession of shop No. 1 constructed in building No. 135/4 situated in Jacobpura, Gurgaon shown in red colour and marked by letters ABCD in the site plan attached with the plaint. The case set up by the plaintiff-respondent was that she was the owner of building bearing No. 135/4, which consists of six shops and open plot, situated opposite post office, Jacobpura, Krishan Mandir Road, Gurgaon. The defendant-appellant took shop No. 1 on rent, which was constructed in this building in the month of December, 1983, on monthly rental of Rs. 250/- from the previous owner Satish Kumar Gupta vide rent note dated 29.12.1983. Previously this shop was owned by Satish Kumar and Sunder Lal and when the said shop fell in the exclusive ownership of the plaintiff, then a fresh rent note was executed by the defendant in her favour on 12.5.1987 on the enhanced rate of Rs. 300/- per month. Later on the rent was enhanced to Rs. 400/- per month by mutual consent. According to the plaintiff, the shop in question was constructed and completed in April, 1938 and electric meter No. FC-319, which was applied in September, 1983, was installed in the shop in April, 1984. Hence, the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable. It was further alleged by the plaintiff that the defendant had made material alterations in the shop. The plaintiff was not interested in keeping the defendant as a tenant and a notice dated 9.7.1992 was served upon the defendant terminating his tenancy under registered post and also through U.P.C. under Section 105 of the Transfer of Property Act. The said notice was duly served upon the defendant on 10.7.1992. Therefore, the tenancy of the defendant stood terminated w.e.f. 26.7.1992, i.e. after the expiry of 15 days from the receipt of the notice. It was further stated that the defendant is in arrears of rent from 1.12.1991 to 25.7.1992 at the rate of Rs. 400/- per month and he is liable to make the payment of compensation for the use and occupation of the shop in question at the rate of Rs. 400/- per month. The plaintiff asked the defendant several times to vacate the shop in question but to no effect. The notice of the suit was given to the defendant, who filed the written statement and pleaded that civil Court has no jurisdictions to try the suit as the property in dispute is within the municipal limits of Gurgaon and, therefore, the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Rent Act') are applicable. It was further pleaded that the suit has been filed in order to harass him with a mala fide intention. On merits, the defendant denied the ownership of the plaintiff of the building bearing No. 135/4. The defendant denied that he took the shop in question on rent in December, 1983 and stated the shop was taken in the month of November, 1982 from its previous owners Satish Kumar and Sundar Lal and after renovating the shop he actually started his work in the month of December, 1982 under the name and style of Ram Hans Tailor, New Post Office, Jacobpura, Gurgaon. The rent note alleged by the plaintiff was also denied by the defendants stating that if the signatures of defendant were obtained on any document purported to be rent note, the same is not binding against his rights. However, the defendant admitted that when the shop was taken by him on rent, Sunder Lal and Satish Kumar were the owners of the same and it subsequently fell to the share of the plaintiff. He stated that a fresh rent note in favour of the plaintiff was executed by him on 12.5.1987 at the enhanced rate of Rs. 300/- per month. The rent was enhanced from Rs. 300/- to Rs. 400/-, but the same was not enhanced by mutual consent of the parties. (sic) the defendant paid the enhanced rent @ Rs. 300/- per month upto 31.1.1989 and thereafter the plaintiff refused to receive the rent except at the enhanced rate of Rs. 400/- per month. Consequently, the plaintiff threatened to initiate the proceedings for the ejectment of the defendant. It was also pleaded that the shop in question is a part of a very old building and it was not newly constructed. Gates were opened in the wall of the old building in January 1982, and a big hall was converted in the shop by erecting partition wall in the big hall. The shops are not new nor were constructed and completed in April, 1983, hence the general provisions of law are not applicable. Rather the parties' rights are governed by the Rent Act. With this broad defence, the defendant prayed for the dismissal of the suit. A re-joinder was filed by the landlady to the written statement of the defendant in which she reiterated her allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial Court framed the following issues :-

(3.) DEFENDANT Vinod Kumar Sehgal filed the first appeal before the Court of Addl. District Judge, Gurgaon, which for the reasons given in paras No. 8 to 28 of its judgment, and reproduced as under, affirmed the judgment and decree of the trial Court and dismissed the appeal.