Jharkhand High Court
Vijay Kumar Minocha vs Sunita Bagroy And Ors on 9 May, 2014
Equivalent citations: 2014 (3) AJR 754
Author: D.N.Upadhyay
Bench: D.N.Upadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 14 of 2011
Vijoy Kumar Minocha. ... ... ...Petitioner
-Versus-
Sunita Bagroy & Ors. ... ... ...Opp. Parties
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CORAM: THE HON'BLE MR. JUSTICE D.N.UPADHYAY
For the Petitioner: Mr. Manjul Prasad, Sr. Advocate.
For the Opp. Parties: Mr. Rahul Gupta, Advocate.
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C.A.V. on 05.09.2013 : Pronounced on 09.05.2014
D.N.Upadhyay,J. This Civil Revision has been directed against the judgment dated
20.01.2011passed by learned Second Additional Munsif at Ranchi and decree signed on 04.02.2011 in connection with Eviction Title Suit No. 01/2007 whereby the petitioner/defendant has been directed to hand over the vacant possession of the suit premises to the plaintiff within a period of two months from the date of judgment.
2. The plaintiff has brought a suit against the petitioner for evicting him from the suit premises wholly and particularly described in the schedule annexed at the foot of the plaint and further after evicting the petitioner for putting the plaintiff/opposite party in Khas possession over the same. It is disclosed that one shop premises with fittings over Holding No. 515/C-1 in Ward No. III, Khata No.1786 situated at main road within (Ranchi-Chaibasa Road) near Pee Pee Compound, P.S. Hindpiri, District- Ranchi butted and bounded on the north and south by other shops and on the east open space and Main Road and on the west within 4' wide passage was given to the petitioner on rent for five years from 1.1.1997 to 31.12.2001 with option to the lessee/petitioner to renew the same for another five years. The aforesaid lease was renewed vide registered deed of lease dated 12.2.2002 for a fixed period of five years commencing from 1.1.2002 and ending on 31.12.2006 on monthly rent of Rs. 3168/-. In the fresh lease there was no provision for further renewal. A sum of Rs. 28,000/- as security to ensure due performance of the terms and obligations by the petitioner/defendant was also deposited with the plaintiff/opposite party and the amount was returnable without interest on the occasion of handing over the vacant possession of the suit premises. After expiry of period of lease the opposite party, through his lawyer issued a notice against the petitioner on 18.12.2006 asking him to vacate the suit premises after 31.12.2006. Since the petitioner failed to hand over the vacant possession of the suit premises after expiry of the period of lease, Eviction Title Suit No. 01/2007 was filed on 4.1.2007 as the cause of action arose on and from 31.12.2006 when the suit premises was not vacated and on subsequent dates. For the purpose of court-fee and jurisdiction the suit was valued at Rs. 31016/- and ad valorem court-fee was also deposited.
3. The petitioner/defendant after publication of the notice in local newspaper appeared in the court-below and filed an application for grant of leave to contest the suit and subsequent to grant of leave to contest the suit, written statement was filed. The petitioner has made out a case that the suit in its present form is not maintainable and barred by the principle of waiver, estoppels and acquiescence.
2.It was also pleaded that the suit is barred by principle of res judicata. Further plea of the petitioner was that no cause of action ever arose. He has been carrying on business in the suit premises continuously for more than decades as a tenant and after every five years lease deed used to be executed and registered on agreed enhanced rent whereas other terms and conditions of every lease always remain same. On the expiry of the period of lease which was for the period 1.1.97 to 31.1.2001 another lease for further period of five years was executed on enhanced monthly rent of Rs. 3168/- for which a sum of Rs. 2561/- was paid by the petitioner as a cost for execution and registration of renewed lease from 1.1.2002 to 31.12.2006 and that was registered on 12.2.2002. It is contended that the petitioner was not given opportunity to go through the content of lease deed dated 12.2.2002 and he was under impression that the renewal clause as usual must be there but after knowing the institution of suit he could learn that the opposite party has practiced fraud by deleting the renewal clause from the lease executed on 12.2.2002. The petitioner in his written statement has further contended that he had been paying rent regularly by cheque on month to month basis or for several months at a time. The rent for the month of June to August, 2006 was paid by a single cheque bearing no. 726200 dated 22.06.2006 for Rs.9405/- only. Similarly the rent for the month of September to November, 2006 was collected from the petitioner by the opposite party on 30.09.2006 through Account Payee cheque no. 529773. The period of lease was to be expired on 31.12.2006, therefore, the petitioner asked the opposite party to renew the lease for further period of five years commencing from 1.1.2007 and on such request the opposite party disclosed that no renewal clause is there in that very deed. To know such fact, the petitioner surprised and asked the opposite party to supply the copy of the deed. On such demand, the opposite party supplied photo copy of lease deed. After perusing the same, the petitioner raised issue of fraud with the plaintiff and communicated him to take appropriate legal action. Thereafter, the opposite party/plaintiff to pacify the petitioner said that there is no need to worry and his tenancy would not be disturbed. At the request of plaintiff/opposite party the petitioner deposited rent for the month of January and February, 2007 in advance along with the rent of December, 2006 and a sum of Rs. 9504/- through Account Payee cheque bearing no. 531898 dated 30.11.2006 drawn in favour of the plaintiff was given to him. The plaintiff further received rent for the month of March, 2007 through another Account Payee cheque bearing no. 508268 for a sum of Rs. 3168/-. The case of the petitioner is that after receiving rent for the month of December, 06 to March, 2007 the plaintiff/opposite party mala fidely did not issue receipt whereafter the matter was brought to the notice of competent authority. In spite of specific direction, the plaintiff- opposite party has not issued rent receipt for the month of December, 2006 to March, 2007. The petitioner has also filed Complaint Case bearing no. 472 of 2007 against the plaintiff and his son for the criminal acts. Further plea of the petitioner is that on the assurance to continue the tenancy, on demand made by the plaintiff, the petitioner/defendant had paid rent for the month from December, 2006 to March, 2007 3. and therefore, the petitioner has become month to month tenant by holding over. The petitioner has specifically denied the content of the plaint para wise in the written statement filed by him. The petitioner has denied that no notice was ever served upon him through lawyer of the plaintiff. It was pleaded that there was no ground available to the plaintiff for asking the petitioner/defendant to vacate the suit premises after expiry of period of lease because he has become month to month tenant by holding over and he cannot be evicted on the concocted plea of expiry of period of lease. The learned Munsif after considering the pleadings of both the parties framed the following issues:-
Issue No.1- Whether the suit as framed is maintainable ?
Issue No.2- Whether the plaintiff has valid cause of action for the
suit ?
Issue No.3- Whether the defendant was tenant under the plaintiff
for a fixed terms or lease Or whether a tenancy by holding
over has been created ?
Issue No.4- Whether the plaintiff is entitled to get a decree for eviction
of the defendant from the suit property after expiry of
lease deed dated 12.02.2002 ?
Issue No.5- Whether after expiry of lease plaintiff is entitled to forfeit
the security deposit of Rs. 28,000/- deposited by the
defendant ? And
Issue No.6- Whether the plaintiff is entitled for any relief as claimed ?
4. The plaintiff examined following witnesses and proved the document:-
P.W. 1- Gaurav Bagray,
P.W. 2- Ashok Kumar,
P.W. 3- Jagnu Karmali; and
P.W.4- Lalit Tripathi.
Exhibit 1- Certified copy of power of attorney,
Exhibit 2- Certified copy of lease deed of February 2002,
Exhibit 3- Notice Dated 18.12.2006,
Exhibit 3/A- Carbon copy of notice dated 16.01.2002,
Exhibit 3/B- Carbon copy of notice dated 23.01.2002,
Exhibit 3/C- Notice dated 01.02.2007,
Exhibit 3/D- Notice dated 09.02.2007,
Exhibit 3/E- Notice dated 18.04.2007,
Exhibit 4 to 4/F- Postal receipts,
Exhibit 4/G- Signature and writing of acknowledgment due card. Exhibit 5- Signature in carbon copy of acknowledging receipt.
Exhibit 6 and 6/A - endorsement on sealed envelop; and Exhibit 7- Bank receipt dated 01.02.2007.
5. The petitioner/defendant examined following witnesses and proved the documents:-
D.W. 1 Jay Mangal Prasad, D.W.2 Rajendra Kumar Pandey, D.W.3 Sharwan Kumar Chitlangia, D.W.4 Sidheshwar Kumar, 4. D.W.5 Pankaj Kumar Gupta, D.W.6 Somnath Ray, D.W.7 Vijay Kumar Minocha; and D.W.8 Ved Prakash Minocha.
Exhibit A - Receipt of renewal of lease, Exhibit A/1- Receiving of Ramesh Prasad, Exhibit B - Certified copy of order dated 28.05.2007 Passed in B.B.C. Case No.06/2007 Exhibit C to C/4- Rent Receipt of April 2004 to August 2004 Exhibit D- Statement of account issued by IndusInd Bank, Exhibit E- Receiving by Ramesh Prasad, Exhibit-F- Certified copy of Misc. Petition 13/2007 (A) Exhibit F/1- Order dated 15.02.2007 in Misc. Case No. 13/2007 (A), Exhibit G- Letter dated 14.05.2007; and Exhibit H to H/4- Receiving of postal receipts.
6. The petitioner has assailed the impugned judgment and decree on the ground that at the time of renewal of lease, fraud was practiced and his signature was obtained on the lease deed executed on 12.2.2002 without allowing him to go through the content and he was under impression that as usual renewal clause has been mentioned in the renewed lease deed and he was sure that after expiry of the lease i.e. after 31.12.2006, the tenancy will be renewed for further period of five years. In this context, I have gone through the evidence and documents proved by the plaintiff (Ext. 3/A), which is a carbon copy of letter dated 16.01.2002 sent by the plaintiff to the petitioner, it is indicated that draft copy of lease was sent to the petitioner for its approval. Ext. 3/B carbon copy of letter dated 23.1.2002 sent by the plaintiff to the petitioner further indicates that 7 days time was given to the petitioner to give his consent for renewal of lease if he is so interested. In that very letter it was also made clear that request for incorporation in the lease deed, a clause of renewal of the lease after the expiry of five years i.e. 31st December, 2006 is not acceptable to the plaintiff. Postal receipts have also been proved and marked exhibits. It is admitted case of the petitioner that deed of lease was executed and registered on 12.2.2002 and for that expenses were borne by him. In the circumstances in which correspondences were made by the plaintiff with the petitioner before execution of lease dated 12.2.2002 it is clear that the plaintiff was much much fair in his conduct and all opportunities were given to the petitioner to go through the lease deed and the execution and registration of lease deed suggests that the petitioner was fully acquainted with the terms and conditions of the lease and he was well knowing that no clause for renewal of the lease for further period was there. Besides the above, it is the wish and choice of the landlord to propose the terms and conditions before the tenant and it is up to him, either to reject 5. or to accept the terms and conditions of tenancy when a lease deed is executed and registered. The lessee cannot make a plea that he was unacquainted with the terms and conditions of the lease. Therefore, in the circumstances stated above, I do not find that argument advanced by the petitioner in this context is acceptable.
7. The next point which the petitioner has raised before this Court is that the suit was filed by the landlord but he did not come forward to support the pleadings made in the plaint rather P.W. 1, who happens to be son and attorney holder of the plaintiff has proved the case of the plaintiff. Since the petitioner did not get opportunity to cross-examine the plaintiff, a serious prejudice has been caused to him and on this score alone this Revision Application is liable to be allowed. I have gone through the lower court record from which it appears that the plaintiff himself did not appear to prove the pleadings made in the plaint or the documents available and marked exhibits but at the request made by the petitioner, the plaintiff appeared for adducing evidence. The petitioner/defendant instead of examining him, had taken another plea that he wants only to cross-examine the plaintiff. It is not expected that a person who has not been examined in chief as a witness can be cross-examined and it is not the law. Considering the situations created by the petitioner, the Trial Court has passed a detailed order on 7.5.2009. The said order itself is speaking one and that order has not been challenged by the petitioner before any superior forum. The learned Addl. Munsif has rightly held that there is no bar if a lawful attorney of the plaintiff appears before the Court and depose as a witness to prove the case of the plaintiff and the documents. I am of the same view because the power of attorney of the plaintiff in favour of P.W. 1 is not under challenge. In the circumstances, I do not find any force in such argument advanced by the petitioner.
8. The main point on which the petitioner has assailed the impugned judgment is that of holding over;-
It is contended that the petitioner had deposited rent for three months i.e. rent for the month of December, 2006 to February, 2007 through a cheque which was deposited and accordingly the amount was credited in the account of the plaintiff. Rent for the month of March, 2007 was also paid by the petitioner which was accepted by one of the faithful staff of the plaintiff. It was argued that acceptance of rent by the plaintiff after determination of the lease, clearly suggests that he has become month to month tenant and his possession over the demised premises has become that of holding over as according to Section 116 of Transfer of Property Act and he cannot be evicted from there only on the ground of determination of lease. In this context, the petitioner has relied on the judgment reported in (2000) 7 Supreme Court Cases 232 "
Bhuneshwar Prasad V. United Commercial Bank". The facts in brief as indicated in the judgment is as under:-
Respondent 1 Bank was the tenant of the suit premises under a registered deed of lease for a fixed period of 5 years. Under the deed of lease the Bank was given the option of renewing the lease twice at the time of expiry, provided that notice for renewal was given one month prior to the expiry. The original lease was for the period 1.4.1981 6. to 31.3.1986. The lease was renewed for the period 1.4.1986 to 31.3.1991 at a monthly rent of Rs.10876/-. The Bank did not seek renewal a month before 31.3.1991. The appellant landlords asked the Bank to vacate the premises by 31.5.1991 by letter dated 22.4.1991. The Bank sought renewal of the lease by letter dated 24.4.1991. This request was not acceded to by the appellants, who insisted on their demand of eviction. The Bank continued to deposit the rent even after 31.3.1991 in the appellants' account at their own branch in the suit premises.
The appellants sought the eviction of the Bank under Section 11(1) (e) of the Bihar Buildings ( Lease, Rent and Eviction) Control Act, 1982, on the ground that a lease for a specified period had expired. Resisting the eviction suit, the Bank pleaded that it was a tenant on month to month basis; that rent had been increased from time to time; that it had been regularly depositing rent even after 31.3.1991, and at an enhanced rate. The Bank pleaded that it had proposed, as per its letter dated 7.9.1991 that rent be increased to Rs 13,595 per month; after some discussion the appellants had agreed to receive rent at the new rate and since then had been regularly withdrawing the money from their account.
The trial court decreed the suit for eviction. In revision the High Court, however, set aside the decree, on the basis of the acceptance and withdrawal of the enhanced rent from their bank account, by the appellant landlords.
Before the Supreme Court, the appellants contended that mere acceptance of rent did not create a tenancy from month to month, because the tenant Bank was protected from eviction under the provisions of the Rent Act.
9. The facts appearing in the case indicated above is that after determination of the lease amount equivalent to previous rent or an amount which was fixed as standard rent was not paid rather rent at the enhanced rate was deposited by the Bank in the account of landlord (appellant) and that too after some discussion and the landlord had kept on withdrawing rent so credited in his account and therefore the judgment of the trial court was reversed by the High Court and it was affirmed by the Hon'ble Supreme Court.
"In para 7 it was observed " the whole basis of Section 116 of T.P. Act is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession. It would be absent in cases where there are restrictions as contemplated by rent laws. In such case therefore, it is for the tenant where it is said that the landlord accepted the rent not as statutory tenant but only as a legal tenant indicating his assent to the tenants continuing possession, to establish it."
" In para 8 it was held- in the present case the Bank, from the conduct of the owners has established that the acceptance of increased rent was in token of the owners' assent to the Bank continuing in possession after expiry of the lease, thereby, creating lease from month to month within the meaning of Section 116 of the T.P. Act, 1982. The High Court has rightly reversed the judgment and decree of the Trial Court."
10. Not only the petitioner as well as the opposite party both have placed reliance on the judgment reported in A.I.R. 1972 Supreme Court 819 'Bhagwanji Lakhamshi vrs. Himatlal Jamnadas Dani' but the Supreme Court also referred aforesaid judgment in the case of 'Bhuneshwar Prasad & Anr. vrs. United Commercial Bank & Others' ( supra). The whole concept of application of Section 116 7. of the T.P. Act is based on the conduct of the tenant as well as the landlord after determination of the lease if the tenant after expiry of period of lease will be willing to continue the tenancy, he may prove it either by expression in words intending to continue his occupation or by conduct by tendering rent for further months after expiry of the lease. The assent of the landlord can also be judged from his conduct but it may vary from the facts of each case. Since both the parties have placed reliance on the judgment reported in the case of Bhagwanji Lakhamshi (supra), I feel it desirable to quote paragraphs 9, 12 & 13 of the said judgment:-
9. "The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Baj Jerbai Hirjibhoy Warden, 1949 FCR 262= (AIR 1949 FC 124), the Federal Court had occasion to consider the question of the nature of the tenancy crated under Section 116 of the Transfer of Property Act and Mukherjea,J. speaking for the majority said, that the tenancy which is created by the "holding over"
of a lessee or under lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations:-
Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy. In (1961) 3 SCR 813= (AIR 1961 SC 1067), this Court observed as follows:-
8."By the Rent Restriction Statutes at the material time, Statutory immunity was granted to the appellant against eviction and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory prohibition imposed upon the Courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee continuing in possession". Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise, be conditioned."
12. "Learned Counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Sec. 116. We are not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that land-lord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy. Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262= (AIR 1949 FC 124) is correct and does not require re-consideration.
9.13. "We, therefore, come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months' notice for the determination of the tenancy by holding over does not arise for consideration."
11. It further transpired that the findings given in the case of 'Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden', reported in 1949 FCR 262; A.I.R. 1989 FC 124 by the Federal Court has been approved in the judgment stated above and relevant part is quoted hereunder:-
" However, an agreement creating fresh tenancy within the meaning of Section 116 can be implied from the conduct of the parties. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case."
12. Thus it is clear that Section 116 of the Transfer of Property Act would not be attracted merely on acceptance of rent but the conduct of the landlord allowing the tenant to continue his possession after determination of the lease is important. From the discussions made in the judgment "Bhuneshwar Prasad & Anr. Vrs. United Commercial Bank & Others" (supra), it is clear that the assent of the landlord allowing the tenant to continue his possession over the tenanted premises even after determination of the lease was implied since the landlord had started withdrawing enhanced rent credited to their account. I am of the firm view that in such situations conduct of the landlord shall always vary according to facts and circumstances of each individual case. Now coming to the case at hand and after going through the case record, it appears that the tenancy for suit premises was for a fixed period commencing from 1.1.2002 to 31.12.2006 and the lease deed was executed by and between the parties on 12.2.2002.
13. Ext. 3 is copy of legal notice dated 18.12.2006 sent to the petitioner on behalf of the plaintiff through his lawyer Balmukund Lal by which the petitioner was directed to quit and vacate the tenanted premises immediately after expiry of the lease and hand over the vacant possession of the same with effect from 1.1.2007. The action to get the petitioner evicted from the suit premises was initiated by the plaintiff prior to the expiry of the period of lease and he was duly informed to perform his part of obligation after expiry of lease by vacating the suit premises and he was informed well in advance.
When the petitioner did not vacate the demised premises on 1.1.2007 i.e. after determination of the lease, suit for eviction was immediately filed on 4.1.2007. This conduct of the plaintiff is very very clear that he was not intending to allow the petitioner to continue his possession over the suit premises after determination of the lease. The petitioner has taken a plea that he had tendered rent for the month December ,2006 to February, 2007 and it was accepted by the plaintiff. This contention of the petitioner cannot be accepted in view of the evidence and document available on 10. record. As soon as the plaintiff could learn that petitioner/defendant had deposited said sum of Rs. 9,504/- in his Saving Bank Account, the matter was immediately informed to the Branch Manager of concerned Bank by letter dated 1st February, 2007 ( Ext. 3/C) with a request to debit the amount so deposited and also named the person, who has deposited the cheque in his account. The Branch Manager has been examined as P.W. 3 and he has supported the contention of the plaintiff. At the request of plaintiff said sum of Rs. 9,504/- was debited from his account and kept in sundry account. Thereafter vide letter dated 9.2.2007 information was also given to the petitioner by the plaintiff that said sum of Rs. 9,504/- deposited through cheque no. 531898 dated 23.12.2006 in the account of the plaintiff has been directed to be debited and the petitioner was warned not to commit such wrong in future because the plaintiff is not intending to create a fresh tenancy and therefore, you are not supposed to create evidence for that. The steps taken by the plaintiff in this regard clearly gives a picture that he was never intending to allow the petitioner to continue his possession over the suit premises and there was no intention to renew the lease for further period. Within no stretch of imagination deposit of rent for three months through cheque directly in the account of plaintiff by the petitioner, can be termed as an acceptance of rent. The plaintiff cannot guess as to what defence the defendant is going to take and therefore the defence taken by the defendant in W.S. cannot be expected in the pleading of the plaintiff and such defence can well be controverted by leading evidence or by cross examining the witnesses produced by the defendant. The plaintiff had rightly taken steps to debit his account with regard to the amount deposited by the defendant in his account without his consent.
14. The respondent-opposite party has also relied on the judgment reported in (2005) 5 S.C.C. 543; (2006) 6 S.C.C. 205. The view that merely acceptance of rent equivalent to previous rent cannot be considered assent of the landlord allowing the tenant to continue in possession after expiry of the lease under the meaning of Section 116 of the Transfer of Property Act, found support from the judgment, reported in the case of " Bhawanji Lakhamshi V. Himatlal Jamnada Dani" and "Kai Khushroo Bezonjee Capadia vrs. Bai Jerbai Hirjibhoy Warden" (supra).
15. Considering all these aspects and also in view of the judgment referred to above, I do not find any merit in this revision. The learned Addl. Munsif has elaborately discussed the evidence adduced from both sides and the documents produced. The facts appearing in the case of Bhuneshwar Prasad v. United Commercial Bank (supra) is not available in the case at hand and therefore said judgment shall not help the petitioner.
16. In order to appreciate evidence and document, issue wise discussions have also been made in the impugned judgment and decree which need no interference. The petitioner has already consumed about eight years in the litigation and enjoyed the possession over the suit premises and therefore directed to vacate the suit premises within 60 days from the date of this judgment failing which he shall be evicted therefrom with due process of law. The judgment and decree passed in T.S.No.01/2007 11. by the Addl. Munsif, Ranchi is hereby upheld.
17. Accordingly, this Revision Application stands dismissed.
[D.N.Upadhyay,J.] P.K.S.