Andhra HC (Pre-Telangana)
Calvery Baptist Church, Visakhapatnam vs Vivekananda on 5 March, 2002
Equivalent citations: 2002(3)ALD157, 2002(4)ALT164
ORDER G. Yethirajulu, J.
1. The appellant is the plaintiff in OS No.17 of 1991 on the file of the II Additional District Munsif, Visakhapatnam. The respondent herein is the defendant in the said suit. The plaintiff filed the suit for eviction of the defendant from the plaint schedule building by directing him to deliver vacant possession of the building and subsequent damages for use and occupation @ Rs. 1,6007/-per month.
2. The plaintiff averred through his plaint that the defendant made a proposal to establish a printing press in the suit building and the plaintiff agreed for the same. Accordingly the plaintiff executed an agreement of lease on 2-9-1985 mutually agreeing that the defendant should pay Rs.1,000/- p.m., towards house rent and Rs.1,000/- towards amenities. It was further agreed that the plaintiff should let out the building to the defendant for a period of 5 years with a liberty to either of the parties to terminate the tenancy by giving six months notice to the opposite party. The defendant paid Rs.4,000/- towards advance refundable at the time of vacating the building. The defendant is running a printing press and is violating the terms and conditions of the agreement. The plaintiff sent a notice to the defendant on 26-3-1988 terminating the tenancy under Clause (7) of the agreement and calling upon him to vacate the property by six months notice. The defendant failed to give any reply and promised to vacate the same. The defendant subsequently approached the plaintiff to permit him to continue the tenancy for the full period of 5 years and the plaintiff agreed for the same. Subsequently the plaintiff issued a notice to the defendant on 4-5-1990 calling upon him to vacate the house on expiry of the period of 5 years. The defendant having received the notice, failed to send any reply. The plaintiff therefore filed the suit for eviction of the defendant from the suit property on the expiry of the period of tenancy and also on the ground that the plaintiff requires the property for occupation.
3. The defendant resisted the suit through his written statement contending that the plaintiff failed to provide certain amenities promised to be provided at the time of agreement of lease. The plaintiff violated the conditions of lease. At the time of lease, the defendant specifically stated to the plaintiff that he required the building for a long time, since he cannot afford to change the printing press business within short time. The plaintiff filed the present suit to lease out the suit premises to third parties. There is no proper notice issued by the plaintiff as contemplated under law. Even if such notice is true, it became invalid due to acceptance of rent by the plaintiff from the defendant subsequent to the notice. The suit is therefore liable to be dismissed with costs.
4. On the basis of the above pleadings, the trial Court framed appropriate issues. The plaintiff in support of its case examined PW1 and marked Exs. Al to A12. The defendant examined himself as DW 1 and marked Exs. B1 toB3.
5. The trial Court, after considering the evidence adduced by both parties, held through its judgment dated 30-4-1996 that the defendant is liable to be evicted from the suit house, and is liable to pay Rs.1,600/- per month towards damages for use and occupation of the suit building. The trial Court accordingly decreed the suit with costs.
6. The defendant, being aggrieved by the judgment and decree of the trial Court, preferred AS No.134 of 1996 on the file of the I Additional District Court, Visakhapatnam.
7. The 1st appellate Court, after considering the evidence adduced by both parties and after going through the judgment of the trial Court, allowed the appeal through its judgment dated 30-4-1997 by reversing the findings of the trial Court.
8. The plaintiff being aggrieved by the judgment and decree of the 1st appellate Court, preferred this appeal challenging its validity and legality.
9. The following are the substantial questions of law framed at the time of admission of the second appeal.
(1) Whether there is no necessity to issue a quit notice under Section 106 of the Transfer of Property Act for eviction of defendant/tenant in the demised premises after determination of tenancy by efflux of time.
(2) Whether the acceptance of the amount paid by the defendant through Exs. A5 and A6 chalans towards rent amounts to waiver of quit notice?
Point No. 1:
10. The plaintiff is a Calvery Baptish Church represented by its Secretary, who was examined as PW1. The plaintiff agreed to let out the suit building to the defendant for running a printing press on a monthly rent of Rs.2,000/- (Rs. 1,000/- towards rent and Rs. 1,000/- towards amenities). According to plaintiff, there was an agreement of lease dated 2-9-1985 prescribing the period of lease as 5 years. The defendant contends that at the time of lease he has specifically stated to the plaintiff that he requires the building for a longer period. But, he did not specify as to what was the period of lease that was mentioned in the alleged agreement. The plaintiff could not produce the said lease deed which was an unregistered document inadmissible in evidence.
11. The suit schedule property is a house. !f there is any lease for more than one year, it shall be entered through a registered document. Since the alleged lease deed is not a registered one, there is no scope to look into the terms and conditions of lease mentioned in the said document. Therefore, we have to fall back on Section 106 of the Transfer of Property Act ('the Act1 for brevity) regarding the duration of the lease in the absence of written contract between the parties.
Section 106 of the Act reads as follows:
106. Duration of certain leases in absence of written contract or local usage :--In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to a month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and (either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party), or to one of his family or servants at his residence, or (if - such tender or delivery is not practicable) affixed to a conspicuous part of the property.
12. As per Section 106 of the Act, lease of immovable property for agriculture or manufacturing process deemed to be a lease from year to year. If the lease of an immovable property is for any other purpose, it shall be deemed to be a lease from month to month.
Section 107 of the Act reads as follows:
107. Lease how made :--A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession where a lease of immovable property is made by a registered instrument, such instrument or where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
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13. The defendant did not concede the period of lease as five years. The plaintiff failed to produce the said document. Therefore, an inference cannot be drawn that the period of lease was for five years. Since the agreement of lease for more than one year is a compulsorily registered document, no weight can be given to any amount of oral evidence adduced by the plaintiff unless the period of lease is conceded by the defendant/tenant. When once there is no document in terms of the first part of Section 107 of the Act, it attracts the second part of the said section. Therefore, it shall be deemed that there was an oral agreement of lease between the parties accompanied by delivery of possession. When once it is treated as the lease immovable property for any other purpose, as provided under Section 106 of the Act, it shall be deemed to be a lease from month to month terminable at the instance of either lessor or lessee by 15 days notice expiring with the month of the tenancy.
14. The learned Counsel for the respondent-tenant submitted that since the appellant-plaintiff pleaded that the lease was for a fixed period, a notice of six months, as provided under Section 106 of the Act, is essential. He further submitted that since the notice covered by the original of Ex.A2 was issued on 4-5-1990 about four months prior to the expiry of lease, it is not a valid quit notice. The learned Counsel therefore contends that the plaintiff is not entitled for the relief of eviction of the respondent - tenant from the demised premises.
15. I have already observed that in the absence of an instrument regarding the period of lease, it shall be treated as a lease from month to month and 15 days notice is more than sufficient to terminate the lease and to ask the tenant to vacate the premises. In support of the above proposition, I am fortified with a decision of the Supreme Court in Sameer Mukherjee v. Davinder K. Baja, 2001 (3) ALD 80 (SC), wherein the Supreme Court held that whenever there is a lease for a period of one year or more for agricultural or manufacturing purposes reserving yearly rent, it has to be done only by a registered instrument. If it is an unregistered lease, the rule of construction embodies in Rule 106 does not get attracted and the period of notice for termination of lease is only 15 days, but not six months. The Supreme Court further observed as follows:
Section 106 lays down a rule of construction, which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. On a plain reading of this section it is clear that Legislature has classified leases in two categories according to their purposes and this section would be attracted to construe the duration of a valid lease in the absence of a contract or local law or usage to the contrary. Where the parties by a contract have indicated the duration of a lease, this section would not apply. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction-leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is a prerequisite to invoke the rule of construction embodied in Section 106 of Transfer of Property Act.
Section 107 prescribes the procedure for execution of a lease between the parties. Under the first paragraph of this section a lease of immovabile property from year to year or for any term exceeding one year or reserving yearly rent can be made only by registered instrument and remaining class of leases are governed by the second paragraph that is to say all other leases of immovable property can be made either by registered instrument or by oral agreement accompanied by delivery of possession.
16. There is a specific wording in Ex.A2 - notice that the tenant shall vacate the premises as on 1-9-1990. Though 15 days notice is more than sufficient, four months time was provided to the tenant to evict the premises. Therefore, the notice covered by Ex.A2 can be treated as a valid notice.
17. In E. Chitra Ramacharandas v. National Remote Sensing Agency Hydreabad, , a learned single Judge of this High Court held that a notice of termination of tenancy cannot be challenged on super-technical grounds and when the tenant is continuing in occupation even after expiry of the original lease period as a tenant holding-over on a monthly tenancy with no specific date of commencement of lease, Section 110 cannot be invoked to challenge the validity of the notice of termination.
18. I am therefore of the view that the quit notice covered by Ex.A2 issued by the plaintiff is more than sufficient and it is valid under law.
19. The 1 st appellate Court denied the relief to the plaintiff on the ground that the plaintiff failed to issue six months notice, but in the light of the above position of law, I am of the view that the finding of the 1st appellate Court is liable to bet set aside on this issue. I therefore hold that the notice covered by Ex.A2 issued by the plaintiff is a valid quit notice and the defendant is liable to be evicted from the demised premises.
Poined No.2:
20. The learned Counsel for the respondent-defendant submitted that since the plaintiff accepted the rent under Exs. A5 and A6-chalans subsequent to issuing of Ex.A2-notice, it shall be deemed that the plaintiff waived the quit notice and as there is no valid notice under law, the suit itself is not maintainable.
21. The plaintiff issued a quit notice on 4-5-1990. As per the said notice, the lease was determined with effect from 1-9-1990. Ex.A5 is a chalan dated 21-8-1990. It is prior to the date of determination of lease i.e., 1-9-1990. Ex,A6 was issued on 11-9-1990, which was subsequent to the date of determination of lease.
22. The learned Counsel for the respondent - defendant submitted that since Ex.A6 was subsequent to the date of determination of lease mentioned in Ex.A2-notice, it shall be deemed that the plaintiff waived the quit notice.
23. On a perusal of Exs.A5 and A6 it reveals that the defendant did not mention the months for which the payments were made. As per the general terms of lease, the rent for a particular month is payable in the 1 st week of the next month. There is no general practice of payment of rent in the beginning of the current month. Ex.A6 was issued on 11-9-1990. In the normal circumstances it shall be treated as rent for the previous month i.e, for the month of August, 1990 or for any other earlier month. Unless it is specifically established by the defendant-tenant that it was paid only for the month in which it was paid, it cannot be said that the said payment was made for the current month. In the evidence of the defendant, there is no such plea that the payment made under Ex.A6 was for the current month in which it was paid. The defendant wants to take advantage of an answer given by the plaintiff in his evidence that subsequent to the notice covered by Ex.A2, the defendant paid the rent for August and September, 1990. But, from the totality of the circumstances, it can be safely concluded that the rent paid under Ex.A6 pertains to August, 1990 and for the month of September, 1990. When once it is treated as the rent not for the month of August, 1990, it may be construed that the plaintiff received those rents for the period of lease which was in force till 1-9-1990.
24. In the case on hand, the lease was determined on 1-9-1990. The suit was filed on 16-10-1990. There was not much gap between the date of determination of lease and the date of filing of the suit. It has to be verified from the evidence whether there was an agreement between the parties to extend the lease beyond 1-9-1990.
25. The learned Counsel for the respondent-tenant drew the attention of this Court to a judgment of the Allahabad High Court in Ram Dayal v. Jawala Prasad, AIR 1966 All 623, wherein the Allahabad High Court held as follows:
Once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff-landlord it is that circumstances along which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy, immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant what is material is the acceptance of rent by him for a period subsequent to the notice to quit.
26. In the above case it appears that during the pendency of the suit, the plaintiff accepted the rent sent by the defendant by money-order for a period subsequent to the notice to quit and a plea was raised in defence that the notice to quit stood waived and the plaintiff was not entitled to a decree for ejectment of the defendant from the premises let out. But, in the case on hand, three was no acceptance of rent during the pendency of the suit with an intention to continue the lease. Therefore, the judgment in Ram Dayal (supra) is not helpful to the respondent-tenant.
27. In Golkonda Real Estate and Finance Corporation v. Ch. S.R. Somayajulu, (D.B.) a Division Bench of this High Court held that the conduct of the appellants- plaintiffs is accepting the rents tendered by the respondent-defendant for the period subsequent to the quit notice without any reservations clearly leads to an inference that they were treating the lease as subsisting and therefore it must be held that they waived the notice and accordingly the Court agrees with the view of the learned single Judge that the respondent-defendant became a tenant holding over and so a fresh quit notice is a mandatory requirement.
28. In the case on hand, the learned Counsel for the respondent-defendant conceded that he is not taking the plea of tenancy holding over and he submits that the acceptance of the rent under Exs.AS and A6 amounts to waiver of Ex.A2-notice.
29. The evidence adduced by both parties at any time do not indicate that the plaintiff agreed to allow the defendant to continue as a tenant. I have already observed that the rent paid under Exs.A5 and A6 relates to the months of July and August, 1990. Therefore, such payment made for the period of lease in force cannot be treated as a waiver of the notice. Even if it is taken for a moment that the rent relates to the months of August and September, 1990, it cannot be treated as a waiver of the notice since there was not even an iota of intention on the part of either of the parties to continue the lease subsequent to 1-9-1990. In the light of the above circumstances, I hold that the acceptance of payments under Exs.AS and A6 amount to waiver of notice under Ex.A2.
30. In the result, the appeal is allowed by setting aside the judgment and decree of the 1st appellate Court and confirming the judgment and decree of the trial Court. But under the circumstances, without costs.
31. Respondent-defendant is granted three months' time to vacate the premises, on giving undertaking before the trial Court to vacate.
32. The judgment copy shall be granted within a week.