Patna High Court
Smt.Bharti Devi & Ors vs Amrendra Kr.Sarkar & Ors on 7 February, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.360 of 1985
Against the Judgment and Decree dated
nd
24.05.1985 passed by 2 Addl. Subordinate
Judge, Samastipur in title suit No.125 of 1980 /
18 of 1983.
================================================== Smt. Bharti Devi and Ors.
..........Defendant 2nd party-Appellants Versus Sri Amrendra Kumar Sarkar & Ors ............Plantiffs-Respondents ================================================== Appearance :
For the Appellant/s : Mr. L. N. Das, Advocate For the Respondent/s :Mr. Anil Kumar Jha, Sr. Advocate.
Mr. Gorang Chatterjee, Advocate with him.
================================================== Dated : 7thday of February, 2013 PRESENT CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ORAL J U D G M E N T
1. This First Appeal has been filed by the defendants against the Judgment and Decree dated 24.5.1985 passed by the learned 2nd Addl. Subordinate Judge, Samastipur in title suit No.125 of 1980 / 18 of 1983 whereby the trial Court decreed the plaintiff respondent's suit for eviction.
2. The plaintiff respondent filed the aforesaid eviction suit for eviction of the defendants appellants on the ground of expiry of fix period lease and default and also personal necessity. According to the plaintiffs, 2 Patna High Court FA No.360 of 1985 dt.07-02-2013 2/8 i.e., the Bengali Hindu Theatrical Club inducted the original defendant Surejdeo Singh in the suit premises through the President and Secretary of the Club on the basis of the registered lease deed dated 14.5.1969 for a period of 12 years effective from the date of Ist day of February, 1967. The same was to be expired on 31st January, 1979. According to the plaintiff, the rate of rent for the suit premises was fixed at Rs.350/-. But out of that Rs.300/- was to be adjusted towards the monthly rent till the advance amount of Rs.41,500.33 paise is adjusted and Rs.50/- was payable by the tenant each month. The plaintiff further alleged that Rs.41,500.33 paise was adjusted till the month of December, 1977 and Rs.12.55 paise was paid in excess of the rent towards the amount of adjustment but the tenant did not pay the amount of Rs.50 per month from the month of May, 1969 to December, 1977 as such arrears of rent payable by the defendant was Rs.5200/-. After the month of December, 1977, the defendant was required to pay the entire rent of Rs.350/- per month but till the institution of the suit, the defendant did not pay the rent as such the defendant is a defaulter. The further case of the plaintiff is that the suit premises is required by the plaintiff for personal occupation. The lease expired on 31st January, 1979 and one year prior to the expiry the plaintiff sent notice on 30th March, 1978 to the defendant to the effect that the plaintiff is not intending to renew the lease for any period further and accordingly requested the defendant to vacate the suit premises on the expiry of the lease. The defendant neither paid the rent nor vacated the suit premises.
3. It may be mentioned here that Surajdeo died on 4.2.1980 prior to institution of the suit. The plaintiff filed the suit on 23.12.1980 making the legal representative of Surajdeo Singh as party defendant. The 3 Patna High Court FA No.360 of 1985 dt.07-02-2013 3/8 present appellants filed contesting written statement alleging that the dues amounts have already been paid by different cheques when the lease was orally renewed on 20.2.1979. The rent of two months, i.e. January and February, 1979 was also paid. Therefore, there is no question of default arises and since the lesee has been renewed for further 12 years, no question of eviction arises. Thereafter, the defendant appellants are regularly sending the rent by money order to the plaintiff. The defendants appellant did not deny that the suit premises is required reasonably and in good faith by the plaintiff respondents.
4. On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues :-
(i) Is the suit, as framed, maintainable?
(ii) Have the plaintiff's valid cause of action and right to sue?
(iii) Whether the plaintiffs require the suit premises for their own
use and occupation?
(iv) Whether the story of renewal of lease is correct?
(v) Whether the defendant No.4, Smt. Bharti Devi can be
deemed to be a lessee under law?
(vi) Whether a decree can be passed for eviction on expiry of
term of lease dated 14.5.69?
(vii) Are the plaintiffs entitled to a decree for arrears of rent at the
penal rate?
(viii) To what other relief or relies, if any, the plaintiffs are
entitled?
5. After trial, the trial Court recorded the finding that the lease has expired. The appellant is a defaulter. So far personal necessity is concerned, negative finding was recorded. However, the plaintiff's suit was decreed.
6. The learned counsel Mr. L.N. Das appearing on behalf of the appellant raise a short question in this appeal for decision. The learned 4 Patna High Court FA No.360 of 1985 dt.07-02-2013 4/8 counsel submitted that the trial Court has wrongly appreciated the evidence and has recorded a wrong finding that the fixed term tenancy has expired. According to the learned counsel on 20 th February, 1979, the lease was renewed between the appellants and the plaintiff for further period of 12 years as provided in renewal clause of the lease. Moreover, the plaintiff accepted the rent for the month of February, 1979, i.e., after expiry of the lease, which amount to implied renewal of the lease but the lower Court has wrongly not relied and decreed the plaintiff's suit. So far default is concerned, according to the learned counsel, the defendant appellant was regularly remitting the rent @ Rs.350/- per month through money order which was intentionally refused by the plaintiff, therefore, the defendants are not defaulter. The learned counsel further submitted that since the cinema business which was originally run by Surajdeo Singh was handed over to the present appellant, the lease was renewed in favour of the present appellant. In any view of the matter, since the rent has been accepted, it cannot be said that the lease has expired. On these grounds, the learned counsel submitted that the impugned Judgment and Decree be set side and the plaintiff's suit be dismissed.
7. On the other hand, the learned senior counsel, Mr. Anil Kumar Jha submitted that the lease was between Surajdeo Singh and the plaintiff i.e., the Bengal Hindu Theatrical Club and, therefore there was no question of renewing the said lease between the plaintiff and the present defendant arises that too during the life time of Surajdeo Singh. Surejdeo Singh died on 4.2.1980 and according to the appellant the lease was renewed on 20.2.1979. The learned counsel further submitted that after expiry of the lease if the tenant continues to remain in the suit premises, he is liable to pay the rent and only because rent have been accepted, it will not 5 Patna High Court FA No.360 of 1985 dt.07-02-2013 5/8 automatically create any legal right in favour of the tenant and it cannot be said that the lease was impliedly renewed for 12 years. The learned counsel further submitted that the appellant's case that the lease was renewed for further 12 years is falsified because of the fact that Surajdeo himself had written a letter on 16th March, 1979 ext.1/A whereby he communicated his intention to get the lease renewed for further 12 years. So far default is concerned, the learned counsel submitted that except the statement made in the plaint and the evidences, there is nothing on record to show that the appellant ever remitted the rent through money order and, therefore, there is no proof in support of the fact that rent was paid according to law as such the appellant is defaulter.
8. In view of the above rival contentions of the parties, the points arises for consideration in this appeal is as to whether the plaintiffs have been able to prove the fact that the tenancy was for fixed period which has expired or whether the same was renewed as claimed by the defendant appellant and whether the defendant appellant is defaulter in the eye of law?
9. In the present case as stated above, the plaintiff's case is that Surajdeo Singh was inducted as tenant for fixed period of 12 years through registered deed of lease dated 14.5.1969 which was effective from the date 1.2.1967 and was to be expired on 31st January, 1979. The defence of the defendant appellant is that the said lease was renewed for further 12 years. According to the appellant renewal was oral renewal and secondly that because the rent was accepted for the month of February, 1979 the lease was automatically renewed for further 12 years. It may be mentioned here that in support of the respective cases, the parties have 6 Patna High Court FA No.360 of 1985 dt.07-02-2013 6/8 adduced their respective evidences. So far oral evidences are concerned, the witnesses have been examined by the plaintiff. The witnesses examined on behalf of the plaintiffs have supported the pleading made in the plaint. According to the witnesses, the Club inducted Surajdeo Singh for a fixed period of 12 years. The lease deed has been produced by the plaintiff which has been marked as ext.9. So far the question as to whether the lease expired or not is concerned, the oral evidence is immaterial. It is admitted fact that a registered deed ext.9 was executed by the plaintiff with Surajdeo Singh. No doubt in the lease deed, there is a renewal clause. Admittedly, the deed was never renewed. The defence of the appellant is that on 20.2.1979 the same was orally renewed in favour of the plaintiff. So far this contention is concerned, it may be mentioned here that the renewal clause in the lease deed is for renewing the lease and the renewal must be by registered deed and not by oral.
10. Section 107 of the Transfer of Property Act provides that 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. Therefore, the case of the defendant that the lease was orally renewed for further 12 years cannot be relied upon. The other fact is that on 20.2.1979, Surajdeo Singh who was the original tenant was alive. He died on 4.2.1980 and prior to his death, he had written a letter on 16 th March, 1979 intending to get the lease renewed. No doubt the witnesses examined on behalf of the defendants appellants have stated that the lease was renewed but in view of the above legal position and the fact that during the life time of Surajdeo Singh, the lease for a period of 12 years could not have been renewed. So far as implied renewal is concerned, it may be mentioned here that only because the plaintiff accepted the rent 7 Patna High Court FA No.360 of 1985 dt.07-02-2013 7/8 from the month of February, 1979 after the expiry of the lease or that the plaintiff accepted the rent thereafter also there cannot be any automatically renewal of the lease. If the law provides that for immovable property lease for exceeding one year has to be made by a registered instrument, the same cannot be made by oral agreement between the parties.
11. It may be mentioned here that Section 18 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 provides that if a tenant in possession of any building held on a lease for specified period, intending to extend the period limited by such lease, he may give the landlord appellants one month before the expiry of the period limited by the lease a written notice of his intention to do so and upon the delivery of such notice, the said time shall subject to the provision of Section 11 be deemed to have been extended by double the period covered by the original lease subject to maximum of one year only. Here, the original lease, i.e., Surajdeo never exercised any right under this provision of Bihar Building (Lease, Rent and Eviction) Control Act and, therefore, also it cannot be said that the lease was extended. Over and above the above facts the so called lease which expired on 31st of January, 1979 but the defendants appellants are continuing the suit premises for further 24 years. In such circumstances, it cannot be said that the lease was renewed for indefinite period. I, therefore, find that the defendant has failed to prove that the lease was renewed for further 12 years. In my opinion, the defence putforth by the defendant appellant is frivolous.
12. So far the question of default is concerned, the witnesses examined on behalf of the defendants have stated that the rent was being 8 Patna High Court FA No.360 of 1985 dt.07-02-2013 8/8 paid by money order. However, not a single money order or coupon have been filed by the appellant to show that in fact the rent was ever remitted. On the contrary admittedly the defendant admitted that there was arrears of rent which was paid through the cheques. So far the question of default is concerned, the onus is on the defendant appellant to prove that he validly remitted the rent or paid the rent to the landlord within the time agreed between the parties. Here as stated above except the statements made by the witnesses there is nothing on record in support of the said fact. I, therefore, find that the defendant has failed to prove that the rent was ever remitted or paid to the plaintiff from the month of March, 1979 till the institution of the suit and therefore, the defendant appellant are defaulter. Accordingly, the finding of the trial Court is hereby confirmed.
13. In view of the above facts and circumstances of the case, this First Appeal is dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondents within 2 months. If the cost is not paid within 2 months, the plaintiff is at liberty to realise the same through the process of the Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 7thFebruary, 2013 Sanjeev/N.A.F.R.