Sunita Devi And Ors vs Baldev Singh And Anr
2023 Latest Caselaw 16572 P&H

                                                          Neutral Citation No:=2023:PHHC:125398




           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
114                                                         2023:PHHC:125398

                                                  RSA-5055-2014
                                                  Date of decision: 22.09.2023

SUNITA DEVI AND ORS.                                        ..Appellants

                                    Versus

BALDEV SINGH AND ANR.                                       ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Deepak Arora, Advocate for the appellants.

Mr. R.K. Singla, Advocate for respondents.

ANIL KSHETARPAL, J(Oral)

1. The plaintiff has filed this second appeal against the concurrent

findings of fact arrived at by the Courts below. A counter claim was filed by

the defendants in a plaintiffs' suit to the effect that they are entitled for

decree for possession as the tenancy in favour of the plaintiff (since

deceased) has been terminated vide notice under Section 106 of the Transfer

of Property Act, 1882. In substance, the dispute between the parties is

"whether the tenanted premises is situated within the municipal limits or

outside" because the tenant claims that their tenancy is governed by the

Punjab Rent Act, 1995 (hereinafter referred to as the "1995 Act").

2. On the other hand, it is the case of the owner that the property is

situated in a village and therefore, the 1995 Act will not govern the tenancy.

3. The trial Court decreed the counter claim while dismissing the

prayer for injunction. During the pendency of the first appeal, an application

for permission to lead additional evidence was filed by the legal

representatives of the original plaintiffs, who were the respondents in the

plaint. They prayed for permission to produce the communication from the

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Deputy Commissioner of the district certifying that the tenanted premises

fall within the municipal limits. However, the First Appellate Court

dismissed the same on the ground that the application has been filed after a

period of three years from the date of filing of the appeal.

4. This Bench has heard the learned counsel representing the

parties at length and with their able assistance perused the paperbook.

5. The learned counsel representing the appellants contends that

the aforesaid document is of primary importance that goes to the roots of the

matter and if it is proved that the suit property is located within the

municipal limits, the counter claim filed by the respondents shall not be

maintainable and the proceedings under the 1995 Act shall only be

maintainable.

6. On the other hand, the learned counsel representing the

respondents contends that the First Appellate Court has correctly dismissed

the application as well as the appeal.

7. This Court has considered the submissions of the learned

counsel representing the parties.

8. In fact, the aforesaid document should have been permitted to

be brought on record by the First Appellate Court under Order XLI Rule 27

(Clause b) of the Code of Civil Procedure, 1908, because the Appellate

Court would require this document to pronounce the judgment. This is a

pivotal document, which would decide the fate of the case. For maintaining

a suit for possession, the landlord is required to prove that the tenancy is not

governed by the 1995 Act. In such circumstances, the First Appellate Court

has erred in refusing to permit the appellants to produce the document.

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9. At this stage, the learned counsel representing the parties have

come to a consensus. They submit that the judgment passed by the First

Appellate Court should be set aside while remitting the matter back to the

First Appellate Court to decide the matter afresh after permitting the parties

to lead evidence on this aspect of the matter.

10. Keeping in view the aforesaid facts, the judgment passed by the

First Appellate Court is set aside.

11. The application filed by the appellants for permission to lead

additional evidence shall stand allowed. The appellants shall be permitted to

prove the aforesaid document. The respondent shall also be granted an

opportunity to rebut the same. The First Appellate Court is requested to

make sincere endeavour for deciding the appeal afresh within a period of six

months, from today.

12. With these observations, the appeal is disposed of.

13. All the pending miscellaneous applications, if any, are also

disposed of.

September 22nd, 2023                                   (ANIL KSHETARPAL)
Ay                                                          JUDGE

Whether speaking/reasoned          :     Yes/No
Whether reportable                 :     Yes/No




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