HARBILAS Vs. ROSHAN LAL

JUDGEMENT

(1.) The appellant was a tenant of the first floor of Shop-cum-Flat No. 8, Sector 24-C, Chandigarh, under the respondent at a monthly rent of Rs. 140/ exclusive of water and electricity charges. The tenancy was terminated at the end of May, 1968 by serving registered notice on April 27, 1968. As the tenant refused to vacate the premises kin spite thereof, the respondent filed a suit for his ejectment which was decreed on May 28, 1969. Another suit was filed against him for the recovery of Rs. 1,680/- as damages for wrongful use and occupation of the said premises at double the rate of the rent for the period from July 1, 1968 to the end of December, 1968. In this suit a compromise was arrived at between the parties whereby the appellant agreed to vacate the premises on or before June 30, 1968 and to pay a sum of R. 378/0 on the date of the decree and the remaining amount in two instalments of Rs. 1,000/- and Rs. 680/- by July 31 and Aug, 31, 1969 respectively. In case the defendant failed to comply with the terms of the compromise, the plaintiff was given the right t recover the damages for wrongful use and occupation from Jan. 1, 1969 rate of Rs. 280/- per month. It was further agreed that if the defendant vacated the premised before July 1, 1969, till the delivery of the possession at the rate of Rs. 280/- per month. It was further agreed that if the defendant vacated the premises before July 1, 1969, he would be entitled to deduct the rent for the month of July. The suit was disposed of in terms of the compromise and a decree was accordingly passed. As according to the respondent. The appellant failed to comply with the decree, he filed the comply with the decree, he filed the present suit for recovery of Rs. 2,000/- on account of damages and electric and water charges from Jan. k1; 1969 till July 6, 1969 when the possession of the disputed premises was delivered to him.

(2.) The suit was contested by the appellant, who pleaded that he vacated the premises on June 30, 1969. It was further averred that the premises having been vacated before July, j1, 1969, he was entitled to deduct Rs. 140/- out of the amount payable and as the respondent was not agreeable, it was, he, who committed the default and violated the terms of the compromise. At the trial it was found that the possession had been delivered on July 6, 1969 and that the default was committed kin the payment of the instalment of Rs. 540/- were paid and that too on Nov. 28, 1969 instead of Aug. 31, k1969. Consequently a decree in the amount of Rs. 1,857/- , Rs. 1,727/- on account of damages for use and occupation and Rupees 130/- on account of water and electricity charges was passed against defendant-appellant. The decree of the trial Court having been confirmed, on appeal, by the learned District Judge, Chandigarh, vide judgment dated April 6, 1972, the defendant has come up in this second appeal.

(3.) The finding of the two courts below that the premises in dispute were vacated on July 6, 1969 and not on June 30, 1969 is obviously against the record and unsustainable. No doubt, the plaintiff entered into possession on July 6, 1969 but on that scope it cannot be said that the appellant did not vacate the premises on June 30. 1969. The appellant had sent an intimation through registered letter to the plaintiff on July 1, 1969 that the had vacated the premises. As there was no person present on behalf of the plaintiff to take over possession of the premises, the defendant cannot be held responsible for not putting the plaintiff in its possession on the said date. There was consequently no default on the part of the appellant kin the compliance of the decree and the fact that the plaintiff entered into possession on July 6, 1969, is of no consequence.