Charan Singh v. Gurdwara Karamsar Rare Sahib Trust

-1IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision.29.01.2019 Charan Singh ...Appellant Vs Gurdwara Karamsar Rara Sahib Trust

...Respondent

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. Rahul Rampal, Advocate for the appellant.

-.- AMIT RAWAL J. (ORAL) C.M. No.12404-C of 2016 For the reasons stated in the application, delay of 105 days in re-filing of the appeal is condoned.

Application is allowed.

RSA No.4806 of 2016 The present appeal is directed against the concurrent finding of fact whereby suit of the respondent-plaintiff for possession of shop and mandatory injunction to hand over vacant possession has been decreed by the trial Court and affirmed in appeal by the lower Appellate Court.

The respondent-plaintiff let out the shop situated in Gurdwara Karamsar Rara Sahib on monthly rent of `1000/- per month but the same was alleged to have not been paid w.e.f. 1.1.2001. The suit was filed on 3.1.2002 preceded by a notice dated 09.12.2001.

-2The appellant-defendant opposed the suit by denying authority of the person instituted the suit but did not denying himself to be tenant and accepted the rate of rent to be `225/- per month. Plaintiff in support of pleadings examined PW1 Harbans Singh trustee and brought on record Ex.P1 to P5 whereas defendant examined himself and brought on record rent receipts Ex.D1 to D7. It was also alleged that the plaintiff accepted the rent during the pendency of the suit.

Mr. Rahul Rampal, learned counsel appearing on behalf of the appellant submitted that as per the provisions of Section 113 of the Transfer of Property Act, in case the plaintiff had accepted the rent vide receipts aforementioned, it would tantamount to continuation of tenancy and therefore, ejectment could not have been ordered. This fact has totally been ignored and therefore, resulted into perversity.

I am afraid aforementioned argument is not sustainable, for, it was not a case of tenant's holding over as per the provisions of Section 116 of the Transfer of Property Act. In such situation, provisions of Order 15 Rule 5 CPC protects the landlord and binds the tenant to pay the rent. Had aforementioned rent been not accepted, the plaintiff would have been left in lurch and for claiming arrears of rent undergone another round of litigation. Acceptance of rent during the tenancy would not frustrate interest of the plaintiff and accord benefit to defendant, being a tenant for infinite period. In view of such circumstances, I do not find any illegality and perversity in the concurrent finding of rendered by the

-3Courts below, much less, no substantial question of law arises for determination by this Court. No ground for interference is made out. Resultantly, the second appeal is dismissed.

(AMIT RAWAL) JUDGE January 29, 2019 Pankaj* Whether Reasoned/Speaking Yes Whether Reportable No