SADHU RAM Vs. NAIMAT RAI

JUDGEMENT

(1.) The appellant filed this suit for ejectment of the respondent from shop in dispute and for the recovery of Rs. 9,000/- on account of arrears of rent. The case set up by the plaintiff was that he constructed the shop in dispute in the year 1976 & let it out to the respondent on rent at the rate of Rs. 250/- per month besides house-tax; that the tenancy was terminated by registered notice dated May 2, 1983; and that rent from July 1, 1980 to the end of April, 1983 remained unpaid in spite of notice. The respondent denied the relationship of landlord and tenant and claimed that the shop had been constructed by him. He further pleaded that he was not liable to ejectment till the cost of construction incurred by him was paid by the plaintiff. The trial Court, held that the shop had been constructed by the plaintiff and the defendant was a tenant under him. It, therefore, passed a decree for ejectment but declined the prayer for the recovery of Rs. 9,000/- on the ground that the plaintiff had failed to prove the rate of rent. On appeal, the learned Additional District Judge reversed the finding of the trial Court on the question relating to the rent, but held that the jurisdiction of the Civil Court was barred as the period of ten years of exemption from the applicability of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereafter called 'the Act') had expired during the pendency of the suit. Reliance for this proposition was placed on a decision of the Supreme Court in Vineet Kumar V/s. Mangal Sain Wadhera, 1985 AIR(SC) 817. In the result, the decree for ejectment was set aside and, instead, one for the recovery of Rs. 9,000/- was passed. Aggrieved thereby, the landlord has come up in appeal.

(2.) The decision in Vineet Kumar's case has since been disapproved in a later decision of the Supreme Court in Nand Kishore Marwah and others V/s. Smt. Samundri Devi, 1987 AIR(SC) 2284. The view of the lower Appellate Court that the building was not exempt from the provisions of the Act, therefore, has to be reversed. The learned counsel for the respondent, however, sought to challenge the findings regarding the construction of the shop and the rate of the rent. Both these findings are findings of fact and nothing was urged which could justify interference in Second Appeal. The reliance of the learned counsel for the respondent on three documents, Exhibits D.1 to D-3, to challenge the finding of the lower Appellate Court was also wholly misplaced. Through these documents some material appears to have been purchased, but it is not shown as to who purchased it and for what purpose. It is, therefore, not possible to reverse the findings of the lower Appellate Court on the basis of these documents.

(3.) In view of the reasons recorded above, this appeal is allowed, the decree passed by the lower Appellate Court modified and a decree for ejectment in addition to the recovery of Rs. 9,000/- passed in favour of the plaintiff and against the defendant. No costs.