JAGPAT RAI Vs. GURDIAL SINGH

JUDGEMENT

(1.) GURDIAL Singh plaintiff filed suit for possession of a shop by way of ejectment. The shop is situated in village Assandh, Tehsil and District Karnal. It was alleged that the shop in question was rented out to Jagpat Rai defendant for a period of one year. On the defendant's refusing to vacate the premises, the plaintiff served upon him a registered notice terminating his tenancy and requiring him to quit and vacate the shop. The suit was also filed for the recovery of rent for the period 1.4.1973 onwards @ Rs. 900/- per annum. The defendant controverted the allegations made in the plaint. It was alleged that the shop had not been rented out to the defendant for one year and that no rent was due and no receipt had ever been issued by the plaintiff. The trial Court decreed the suit for ejectment and the lower appellate Court affirmed the findings returned by the trial Court. It was held by the Courts below that the defendant was the tenant of the plaintiff over the shop in question. During the pendency of this regular second appeal, an application was filed by the defendant-appellant under Order 41 rule 27 read with Section 151 of the Code Civil Procedure. By the said application, a notification of the State of Haryana was sought to be produced by way of additional evidence showing that village Assandh had been declared to be a notified area committee in exercise of the powers under the Haryana Muncipal Act, 1973. This application was ordered to be heard alongwith the appeal.

(2.) THE learned counsel for the plaintiff-respondent has not been able to controvert that the shop in dispute in now within the notified area of Notified Area Committee, Assandh. In the view of the matter, I allow the application for additional evidence as this Court is bound to take into account the change of law and to extend its benefit to the tenant, in view of the notification by which the area, where the shop is situated, has been included within the limits of Notified Area Committee. Once it is held that the shop is situated within the Notified Area Committee, the provision of the Haryana Urban (Control of Rent and Eviction) Act, 1973 will apply and the tenant can only be ejected on any of the grounds available under the Act ibid.

(3.) IT has been held by the Supreme Court in Lakshmi Narayan Guin and ors v. Niranjan Modak, AIR 1985 Supreme Court 111, that where the decree for eviction is passed by the trial Court against the tenant under the provisions of the Transfer of Property Act and the statute giving protection to tenant against eviction is extended to the concerned area during pendency of appeal against the decree for eviction, the appellate Court is bound to take into account the change of law and to extend its benefit to the tenant, and consequently to set aside the decree of the trial Court and dismiss the suit.