BIMLA DEVI ALIAS VIMLA Vs. VISHAN DASS

JUDGEMENT

(1.) THIS is defendant's regular second appeal against the judgment of Additional District Judge, Gurgaon, dated 16. 10. 1990 whereby the appeal filed by her against the judgment and decree of the Senior Sub Judge, dated March 12, 1990 was dismissed.

(2.) THE plaintiff filed a suit for possession against the defendant on the ground that the shop in, dispute was constructed in the year 1977 and so the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable for a period of ten years from the completion of its construction. It was further averred that the tenancy was for a fixed period and after the expiry of that period, the defendant was occupying the shop as a statutory tenant. Though no notice was required for terminating such a tenancy yet the plaintiff served notice under Section 106 of the Transfer of Property Act calling upon the defendant to surrender the possession. Since the defendant has not vacated the disputed shop hence the present suit for ejectment of the defendant from the disputed shop.

(3.) THE defendant put in appearance and filed written statement. It was admitted that there exists relationship of landlord and tenant between the parties. However, the defendant denied the other averments made in the plaint i. e. with regard to the construction of the building exemption of the building from the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, the Haryana Act), jurisdiction of the civil court to try the suit and that no legal notice of the termination of tenancy was served upon him. It was further averred that the plaintiff has been receiving rent from the defendant regularly even after filing the suit and in this way, she is estopped from filing the present suit. Preliminary objections were raised that the suit is not maintainable in the present form, that the suit is bad for nonjoinder of necessary parties that the plaintiff is estopped by his act and conduct from filing the suit and that no notice under Section 106 of the Transfer of Property Act was served upon him.