Allahabad High Court
Kunwar Bahadur Singh vs U.P. State Agro Industrial Cor. Ltd. And ... on 5 September, 2014
Author: Shashi Kant Gupta
Bench: Shashi Kant Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 5 Case :- CIVIL REVISION No. - 307 of 2012 Revisionist :- Kunwar Bahadur Singh Opposite Party :- U.P. State Agro Industrial Cor. Ltd. And Anr. Counsel for Revisionist :- Ajay Kumar Singh,Ashish Kumar Singh,Brijesh Chandra Naik Hon'ble Shashi Kant Gupta,J.
This civil revision under Section 25 of the Provincial Small Cause Courts Act has been filed against the judgment and order dated 31.3.2012 passed by the Additional District Judge, Court No. 5, Varanasi in SCC No. 55 of 2010, Kunwar Bahadur Singh Vs. UP State Agro Industries Corporation Ltd. and another whereby the suit filed by the plaintiff-revisionist for arrears of rent and ejectment has been dismissed.
Brief facts of the case are as follows;
Plaintiff-revisionist filed a SCC Suit No. 55 of 2010 for arrears of rent & ejectment of the defendant-respondents from the premises in question, claiming arrears of rent at the rate of Rs. 4,000/- per month from 1.8.2009 to 30.5.2010 to the tune of Rs. 40,000/- as well as damages along with interest pendente lite for use and occupation of the disputed premises from 1.6.2010 till the delivery of the possession. The said suit was filed after the issuance of notice under Section 106 Transfer of Property Act whereby the tenancy was terminated. The receipt of the said notice has not been denied by the defendant-respondents. Pleadings were exchanged between the parties and evidences were adduced. It is pertinent to note that earlier in the year 2003 a small cause suit No. 3 of 2003 was filed by the plaintiff-revisionist against the defendant-respondents and the said suit was decreed on 19.11.2003 following which an execution proceeding was filed by the plaintiff-revisionist. It appears that the parties thereafter entered into an agreement whereby the defendant-respondents were allowed to continue its tenancy on month to month basis. It was provided in the said agreement that the tenant in question may be allowed to continue his tenancy after the expiry of five years subject to the enhancement of rent by 25% provided there was cordial relationship between the parties. It is not disputed that no further/fresh agreement was executed between the parties after the expiry of five years as provided in the agreement dated 22.7.2004. The trial Court after hearing the parties and perusing the record dismissed the suit filed by the plaintiff-revisionist. Hence the present revision.
Learned counsel for the plaintiff-revisionist submitted that the impugned judgment and decree passed by the court below is patently illegal, perverse and the same has been passed in a most superficial and casual manner, as such, the same cannot be sustained in the eye of law. It is further submitted that admittedly the rent of the premises in dispute was payable at the rate of Rs. 4,000/- per month (above Rs.2000/- per month), therefore, the provisions of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (UP Act No. 13 of 1972) (In short "the Act") was not applicable in the matter and the petitioner was not entitled to any benefit as provided under Section 20 (4) and Section 30 of the Act. It is further submitted that the receipt of notice under Section 106 Transfer of Property Act whereby the tenancy of the defendant-respondents was terminated is not disputed, and after the termination of tenancy the tenant became an unauthorized occupant/Trespasser. It was further submitted that the parties were not having cordial relationship. When the defendant-respondents committed default in the payment of rent, the plaintiff-revisionist terminated the tenancy by issuing a notice under Section 106 of the Transfer of Property Act. It is further submitted that the suit has been dismissed mainly on the ground that parties were having cordial relationships, therefore, the suit was not maintainable.
Per contra, learned counsel for the defendant-respondents has supported the impugned order passed by the Court below and submitted that the defendant-respondents was not a defaulter in payment of rent and further laid great emphasis on the agreement dated 22.7.2004 allegedly executed between the parties.
Heard learned counsel for the parties and perused the record.
Admittedly, there is no dispute that the rate of rent was Rs. 4,000/- per month, therefore, the rent control act was not applicable, and the petitioner was not entitled to the benefit of the deposit if any made under Section 20 (4) or Section 30 of the Act. The receipt of notice issued under Section 106 of the Transfer of Property Act by the defendant-respondents demanding arrears of rent and terminating the tenancy is not disputed. The record shows that earlier in the year 2003, a suit for arrears of rent and ejectment was filed by the plaintiff-respondent. The said suit was decreed by the Judge, Small Causes by order dated 19.11.2003 followed by an execution application by the landlord. It appears that later on, during the pendency of execution proceeding an unregistered agreement 22.7.2004 was entered into between the parties whereby the defendant-respondent was allowed to continue as a tenant on month to month basis.
In paragraph 7 of the said agreement interalia it was provided that if the relationship between the parties remain cordial, the tenant may be allowed to continue after the expiry of five years subject to the enhancement of rent by 25% for the next five years. Admittedly, the plaintiff-revisionist sent a notice terminating the tenancy and demanding the arrears of rent and possession of the premises on 19.5.2010. It is also further admitted that no fresh agreement was entered into between the parties after the expiry of five years for the next five years ie. w.e.f. 01.08.2009. It is evident from the aforementioned fact that after the expiry of stipulated period of five years of lease as provided in the agreement the respondent became tenant on month to month basis. Therefore, the tenancy could be terminated by issuance of a notice under Section 106 Transfer of Property Act as the rent control act was not applicable in the matter.
The court below has committed a grave and manifest error in dismissing the suit merely on the ground that the plaintiff-revisionist was unable to prove that he was not having cordial relations with defendant-respondents. The court below has erred in not considering that after the expiry of stipulated period of five years, admittedly no fresh agreement was executed between the parties and the tenancy thereafter continued on month to month basis, as such, the landlord was fully entitled to terminate the tenancy by issuing a notice under Section 106 of the Transfer of Property Act as the provisions of rent control act were not applicable. Whether the cordial relations existed between the parties or not has no bearing on the maintainability of the suit filed by the plaintiff especially when there was no fresh agreement for continuation of tenancy with effect from 01.08.2009. It has also come on record that cheques given to the plaintiff-revisionist for few months towards rent were never encashed by him.
In support of his contention, learned counsel for the plaintiff-revisionist has placed reliance on various decisions of this Court. In the case of Bank of Baroda Vs. Sardar Arvinder Singha and another, 2002 (47) ALR 91, it has been held that where a lease is on month to month basis, the same can be terminated after issuing of a notice under Section 106 of the Transfer of Property Act. In Shiv Shankar Vs. Additional District Judge, Court No. 8, Agra and others, 2002 (46) ALR 98, it has been held that the benefit under Section 114 of the Transfer of Property Act will be available only in a case where a written lease of immovable property has been determined by way of forfeiture for non-payment of rent. In Union of India and another Vs. Sudarshan Lal Talwar, 2002 (47) ALR 352, it has been held that mere acceptance of rent after the period of termination of the tenancy does not amount to waiver of notice to quit.
In the present case, cheque issued by the defendant-respondents was never encashed by the plaintiff-revisionist and he continued to prosecute his suit after terminating the tenancy of the respondent, therefore it cannot be said that the notice was waived after the acceptance of the cheques. In the present case, there was no intention to treat the lease as subsisting after the issuing of notice. In this connection, the decision of Apex Court in the case of C. albert Morris Vs. K. Chandrasekaran, (2006) 1 SCC 228 can be usefully referred wherein in paragraph 27 it was observed as follows;
"27. The following judgments may also be beneficially looked into in support of the above submission:
The judgment in Saleh Bros. Vs. K. Rajendran & Anr., (supra) which deals with the receipt of rent subsequent to the notice determining lease and pending adjudication suit and as to whether receipt of rent by itself amounts to waiver. In paragraphs 12, 19,20 & 31, this Court held as under:
"12. The receipt of rent may only create a presumption and cannot by its own force amount to a waiver. Section 113 consists of two limbs: (a) the express or implied consent of the person to whom notice is given and (b) "the act of the person giving the notice showing the intention to treat the lease as subsisting". In order to constitute a waiver, both the limbs must concurrently operate, which means, that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver. So much is quite clear from the plain language of the section, which embodies the basic principles, and I find no justification for reading the Illustrations as being repugnant to the section. Every effort should be made to interpret the Illustration in conformity with the main section. The principle underlying Section 116 of the Act will also apply in applying Section 113 as this is also a case of continuance of the lease restoring the old tenancy.
19. I shall next refer to another recent decision of the Supreme Court, in (1968) 2 Andh WR (SC) 42: (1968) 2 SCJ 291: (1968) 2 Mad LJ (SC) 42 = (AIR 1968 SC 471). In that decision, too, the Supreme Court pointed out that under Section 113 of the Transfer of Property Act the act which operates as a waiver must show an intention to treat the lease as subsisting and other party's consent, express or implied therefor. In that case the tenants, who were holding over, issued, on 12th August, 1953, a notice to the landlord of their intention to vacate the premises on 31st August, 1953. But by their letter, dated 26th August they withdrew that notice. The landlord did not agree to the withdrawal of the notice and insisted that the lease had been determined under Section 111 (h) of the Transfer of Property Act. Dealing with the question of waiver, the Supreme Court observed as follows:-
"Clearly Section 113 contemplates waiver of the notice by any act on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent ... express or implied therefor. The law under the Transfer of Property Act on the question in hand is not different from the law in England. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting."
20. ....."The question therefore is, quo animo the rent was received, and what the real intention of both parties was?"
.....The decision in Kai Khurshroo Vs. Bai Jerbai, (1949) FCR 262 = (1949) FLJ 168 = AIR 1949 FC 124, turned upon the peculiar facts of that case and there was a difference of opinion, Patanjali Sastri, J., as he then was, taking a different view. There, after notice to quit, defendants 2 and 3 who claimed to be sub- tenants insisted upon continuing in possession and paid the rent month after month. The majority took the view that the landlord had obvious motive in receiving the payments of rent after a particular period i.e. the appointment of a receiver of the property of the mortgagor at the instance of his mortgagee. Having regard to the uniform view taken in all the decisions, both Indian and English, I am not inclined to interpret this decision of the Federal Court as an authority for the position that the payments and receipt of rent as such in every circumstance would amount to waiver, whatever may be the circumstances of the case and the intention of the lessor."
In this connection, the decision of Court in the case of Lal Chandra Vs. Vice Chancellor, Allahabad H.C., 2002 (47) ALR 352 being relevant is quoted below:
"16. In the light of these decisions I, therefore, find that mere acceptance of rent after the period of termination of the tenancy does not amount to waiver of notice to quit. There must be some intention of waiver. In the present case, the opposite party actively prosecuted the suit for ejectment filed by him. Therefore, it cannot be accepted that the notice has been waived. I, accordingly find that the trial court has rightly held that the notice to quit has not been waived and, therefore, the revisionists are liable to ejectment."
The court below has totally overlooked the fundamental aspect of the matter and thereby fell into a grave error in dismissing the suit in question.
In view of what has been discussed herein above, this revision deserves to be allowed and is hereby allowed. The judgment and order dated 31.3.2012 passed by the Additional District Judge, Court No. 5, Varanasi in SCC No. 55 of 2010, Kunwar Bahadur Singh Vs. UP State Agro Industries Corporation Ltd. and another is set aside and the matter is remanded to the concerned court below to pass afresh order in the light of the observations made hereinabove.
Order Date :- 5.9.2014 vinay