BIMLA SHARMA Vs. BHAGWAN DASS

JUDGEMENT

(1.) THE appellant filed a suit giving rise to this second appeal for ejectment of the respondent-tenant from the shop, in dispute, alleging that the demised shop was constructed in the year 1982 and, as such, was exempt from the applicability of the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) for a period of 10 years and that the tenancy in favour of the respondent had since been terminated but he had failed to deliver back the possession to the plaintiff. The other matters raised in the suit and decided are not noticed, being irrelevant for the purpose of this appeal. The tenant pleaded that the demised shop had been constructed in the year 1973 and, as such, was not exempt from the applicability of the provisions of the Act. The trial Court held that the demised shop was constructed in the years 1976 but dismissed the suit as the period of exemption of 10 years expired during the pendency of the suit. Reliance for this proposition was placed on a decision of this Court in Ishwar Singh Punia v. Atma Ram Mittal, 1986(1) Rent Control Reporter 229, which is based on a decision of the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera, AIR 1985 Sc. 817; 1984 (1) RCR 302. The finding of the trial Court that the shop, in dispute, was constructed in the year 1976 was not challenged before the lower appellate Court but the appeal filed by the plaintiff was dismissed in view of this Court's decision noticed above. Still dissatisfied, she has come up in this second appeal.

(2.) THE rule laid down in Vineet Kumar's case (supra) has since been disapproved by the Supreme Court in its later decision in Nand Kishore Marwah and others v. Smt. Samundri Devi, AIR 1987 Supreme Court 2284; 1987(2) RCR 412. As the exemption of 10 years had not still expired when the suit was filed, the provisions of the Act would not be applicable in the present case. The learned counsel for the respondent, however, sought to challenge the finding of the trial Court that the shop, in dispute, was constructed in the year 1976. As this finding was not challenged in the lower appellate Court, it would not be open to challenge in second appeal. This appeal is consequently allowed, the impugned judgment reversed and a decree of ejectment passed in favour of the appellant and against the respondent. No costs. Appeal allowed.