SATPAL SINGH Vs. BALWANT KAUR GREWAL

JUDGEMENT

(1.) The present appeal has been filed by the defendant, who is aggrieved against the concurrent findings of the Courts below whereby the suit for ejectment filed from shop No.13 situated in Anmol Market, Village Dad, Tehsil and District Ludhiana has been allowed exparte by the Civil Judge (Jr. Division), Ludhiana on 9.4.2011 as the defendant failed to file written statement and defence of the defendant was struck off under Order 15 Rule 5 Code of Civil Procedure and the plaintiff has also been held entitled to recovery of rent from 1.3.2007 to 31.1.2010 at the rate of Rs. 2000.00 per month amounting to Rs. 70,000.00 alongwith interest at the rate of 9% per annum.

(2.) The said order has been upheld in appeal by the Addl. District Judge, Ludhiana vide judgment and decree dated 30.11.2011.

(3.) The case of the plaintiff filed on 3.2.2010 was that the shop was let out at a monthly rent of Rs. 2000.00 by the husband of the plaintiff and she became owner of the shop on the death of her husband as his property was succeeded by her. The husband and wife were settled in Norway and plaintiff is an NRI and she needed the shop to establish the business by her children. It was alleged that defendant was in arrears of rent and failed to pay the rent since Nov., 2005 and inspite of the notice no rent had been paid and under Order 15 Rule 5 Code of Civil Procedure the tenant was bound to pay the rent on the first date of hearing. The property being situated in village Dad was out of the limits of the Municipal Committee, Ludhiana and therefore, the Civil Court had jurisdiction. It was further alleged that defendant had failed to vacate the shop inspite of notice being served in Oct., 2009. The rent had been demanded from 1.3.2007 on account of limitation and defendant instead of vacating the property had filed a false suit for permanent injunction. It was contended that the plaintiff had served notice upon the defendant on 15.1.2010 to hand over the possession under Sec. 106 of the Transfer of Property Act, 1882 and even earlier notice had been served by the husband of the plaintiff upon the defendant on 13.11.2005, but the defendant refused to vacate the property. On service of summons, the defendant had filed an application under Order 7 Rule Code of Civil Procedure on 23.5.2010 for rejection of the plaint on account of deficiency in Court fee since the Court fee on the ground that had been paid on amount of Rs. 1,44,000.00 and the relief of possession being involved, the value of the property was Rs. 50 lacs. Thereafter, written statement was filed along with reply to the application under Order 15 Rule 5 Code of Civil Procedure and the case was adjourned for 22.7.2010. Subsequently, vide order dated 20.12.2010 the application under Order 7 Rule 11 Code of Civil Procedure for rejection of plaint was dismissed and the case was listed for 21.1.2011 for consideration on the application under Order 15 Rule 5 Civil Procedure Code filed by the plaintiff. Thereafter on 12.2.2011 on the basis of the reply and since the appellant had taken the plea that the rate of rent was Rs. 1,000.00 per month and he paid the same upto 10.4.2009, the trial Court came to the conclusion that the defendant was in arrears of rent since 10.4.2009 onwards and was duty bound to tender the rent from the said date on the first date of hearing as per Order 15 Rule 5 Code of Civil Procedure but inspite of the fact that suit had been instituted on 3.2.2010, it had not been done. Accordingly, the trial Court assessed the rent at Rs. 2000.00 per month and in view of the fact that tenancy right of the defendant had been terminated, directed the defendants to tender the rent on 15.3.2011 at Rs. 2000.00 per month along with interest @ 9% per annum while disposing of the application under Order 15 Rule 5 Code of Civil Procedure vide order dated 12.2.2011. It is pertinent to mention that the trial Court also noticed that the counsel for the defendant was not coming present and his junior was requesting for adjournment. The said application was pending since long and therefore, pressed by the plaintiff and was being disposed of accordingly. Thereafter on 15.3.2011 due to the failure of the defendanttenant to pay the rent, the trial Court struck off the defence of the defendant and fixed the case on 4.4.2011 for evidence of the plaintiff. On the said day the plaintiff examined herself and another witness and submitted their affidavits and closed her evidence and the case was listed for 9.4.2011, on which date it was allowed in the presence of the counsel for the defendant but since his defence was struck off, it was decreed exparte and apart from the direction of ejectment of the defendant from the shop in question, the defendant was also held liable to pay rent from 1.3.2007 to 31.1.2010 at the rate of Rs. 2000.00 per month amounting to Rs. 70,000.00 along with interest at the rate of 9% per annum. As noticed above, the said order has been upheld in appeal by the Addl. District Judge vide order dated 30.11.2011.