Telangana High Court
Mohd.Moinuddin. vs S.Sankaraiah. on 8 June, 2022
Author: M.Laxman
Bench: M.Laxman
*THE HON'BLE SRI JUSTICE M.LAXMAN
+ SECOND APPEAL No.752 OF 2001
% 08--06--2022
# Mohd. Moinuddin
...Appellant
vs.
$ S.Shankaraiah
... Respondent
!Counsel for the Appellant: Sri P.Govind Reddy
^Counsel for Respondent: Sri T.Ashok Reddy
<Gist :
>Head Note :
? Cases referred
1 1979 AIR 169
2 (1997) 1 SCC 326
3 W.P.(Civil) No.215 of 2022, dated 27.10.2004
4 AIR 2006 Bom. 321
2 ML,J
SA_752_2001
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
SECOND APPEAL No.752 OF 2001
Between:
Mohd. Moinuddin
...Appellant
And
S.Shankaraiah
... Respondent
JUDGMENT PRONOUNCED ON: 08.06.2022
THE HON'BLE SRI JUSTICE M.LAXMAN
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
_______________
M.LAXMAN, J
3 ML,J
SA_752_2001
THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL No.752 OF 2001
JUDGMENT:
1. The present appeal assails the judgment and decree dated 27.06.2001 in A.S.No.201 of 1996 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad, (for short, lower appellate Court), whereunder the appeal was allowed reversing the judgment and decree dated 03.06.1996 in O.S.No.600 of 1991 passed by the Court of the V Assistant Judge, City Civil Court, Hyderabad (for short, trial Court), whereunder the trial Court rejected the relief prayed by the plaintiff for eviction of the defendant from the suit premises.
2. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
3. The case of the plaintiff is that he is the owner of house bearing No.19-2-180/114, situated at Narasareddy Moochi Colony, Tadban, Hyderabad. The said house 4 ML,J SA_752_2001 consists of four mulgies, and out of them, two mulgies (hereinafter referred to as 'suit premises') were leased out to the defendant on monthly rent. The suit premises were leased out to the defendant initially under the rental deed dated 09.04.1987 on monthly rent of Rs.350/-. The defendant was running a tea stall in the suit premises. The defendant has been paying monthly rent of Rs.250/-, after deducting rent of Rs.100/- towards loan obtained by the plaintiff from him. While so, the defendant failed to pay the rents from January, 1989, in spite of advice given by the Basthi Committee.
4. It is the further case of the plaintiff that he was in requirement of the suit premises for his personal occupation. Apart from committing the default in payment of rents, the defendant caused damage to the suit premises. In the said circumstances, the plaintiff got issued a legal notice terminating the tenancy on various grounds. The defendant though issued reply, failed to handover the possession of the suit premises to the plaintiff. Therefore, the present suit has been filed.
5 ML,J SA_752_2001
5. The defendant filed written statement admitting the ownership of the plaintiff over the suit premises and also the monthly rent. He denied the plaintiff's claim that he caused the destruction of the suit premises as well as default in payment of rents. According to the defendant, the present suit has been filed only as a counter-blast to the Rent Control Case filed by him vide R.C.No.579 of 1989 on the file of the I Additional Rent Controller, Hyderabad. It is the further case of the defendant that with greed of fetching more rent, the plaintiff is trying to evict him and that there is no default on his part in payment of rents.
6. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the plaintiff is entitled to possession?
2. Whether the plaintiff is entitled to damages?
3. To what relief?"
7. The plaintiff, to support his case, examined P.Ws.1 and 2 and relied upon Exs.A-1 to A-14. The defendant, to support his case, examined D.Ws.1 and 2 and relied upon Exs.B-1 to B-13.
6 ML,J SA_752_2001
8. The trial Court, after appreciating the evidence on record, held that there is no destruction of the suit premises, no default in payment of rents by the defendant and the legal notice issued by the plaintiff terminating the tenancy under Section 106 of the Transfer of Property Act, 1882 (for short, the Act) was contrary to the provisions of the Act i.e., the notice is defective and consequently the suit was dismissed. Aggrieved by the same, the plaintiff filed A.S.No.201 of 1996, and the lower appellate Court, allowed the same on the ground that the defendant was a 'tenant holding over' on account of determination of lease period by efflux of time and that there was no fresh renewal of lease, as such, there was no relationship of landlord and tenant between the parties. Challenging the same, the defendant filed the present Second Appeal.
9. This Court, while admitting the Second Appeal, has made a reference to the substantial questions of law raised in the memorandum of grounds, which are as follows:
"a. Whether the determination of the appeal by the Appellate Court is in accordance with the provisions of Order 41 Rule 17(1) C.P.C., and whether the Appellate Court was justified in deciding the Appeal without giving an opportunity of hearing to the appellant?
7 ML,J SA_752_2001 b. Whether the judgment of the Appellate Court is null and void in as much as the Civil Court lacks inherent jurisdiction to entertain the suit for eviction and that the Rent Control Court alone has jurisdiction to entertain the matter?
c. Whether the Appellate Court was justified in giving a finding that Section 106 of the Transfer of Property Act is not at all applicable to the present case which is contrary to the admissions of the respondent in his pleadings that the tenancy is form month to month and that the same is terminable by a notice under Ex.A-3 issued by the respondent under Section 106 of the Transfer of Property Act?"
10. As per the decision of the Apex Court, the Court hearing the Second Appeal is required to specifically frame the substantial questions of law involved de hors the grounds mentioned in the memorandum of grounds. Therefore, the following substantial questions are specifically framed by this Court which cover all the disputed questions raised in the memorandum of grounds.
"(i) Whether the findings of the Appellate Court in holding that the defendant is tenant holding over and dispensing with the notice under Section 106 of the Transfer of Property Act suffer from any perversity?
(ii) Whether the amended provisions of the Transfer of Property Act in respect of Section 106 apply prospective or retrospective?
(iii) To what relief?
11. The above substantial questions were not framed when the arguments were taken up today and hence, this Court 8 ML,J SA_752_2001 gave an opportunity to the learned counsel for both sides to submit their arguments on the same. Both the learned counsel said that the arguments already submitted by them cover the above substantial questions and no fresh submissions are required. In the light of the same, the Second Appeal is taken up for disposal. Substantial question of law No.(i):
12. To answer this substantial question of law, it is required to refer to Sections 111(a) and 116 of the Act and they read as under:
"111. Determination of lease:- A lease of immovable property, determines:-
(a) by efflux of the time limited thereby;
(b) to (h) ...
116. Effect of holding over:- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
13. A reading of the above provisions make it clear that if the time is specified for tenancy and by efflux of time the tenancy is determined, and if the tenant has not vacated the premises and he continued to hold the possession, he is 9 ML,J SA_752_2001 described as tenant holding over. When the tenant holding over is in possession after determination of the tenancy, if the landlord accepts the rent from the tenant, the tenant is deemed to be continued from month to month in respect of house premises and year to year in respect of agricultural properties or manufacturing immovable properties.
14. In the present case, the original rental deed was for 11 months as made out from the evidence on record. The evidence also shows that subsequent to efflux of time contained under the original rental deed, the landlord continued to accept the rent from the tenant. The grievance of the plaintiff is that he has received the rent upto December, 1988 and from January, 1989, there was default in payment of rents by the defendant.
15. The lower appellate Court, without considering the evidence on record with regard to acceptance of rents which made creation of monthly tenancy in terms of Section 116 of the Act, has held that the defendant is tenant holding over and hence, notice under Section 106 is not required. This finding is contrary to the Evidence on record, and hence, the same is required to be set aside. Therefore, it is held that 10 ML,J SA_752_2001 the defendant is the tenant when the suit was filed. Accordingly, this substantial question of law is answered. Substantial question of law No.(ii):
16. The judgment of the lower appellate Court shows that under Ex.A-3, the tenancy was determined with effect from the date of issuance of notice. There is no dispute that in Ex.A-3, the determination of the tenancy was made with effect from the date of issuance of the notice. Before the amendment to the Act, for issuing the notice of determination, 15 days minimum period has to be given to the tenant, expiring with the end of the month of tenancy. If the old provision is taken into consideration, the findings of the lower appellate Court cannot be found fault since the said requirement is satisfied. In the meanwhile, Section 106 of the Act was amended by Act 3 of 2003, which reads as under:
"106. Duration of certain leases in absence of written contract or local usage:- (1) 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; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
11 ML,J SA_752_2001 (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub- section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) 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."
17. A reading of sub-section (3) of Section 106 of the Act reads that a notice issued under sub-section (1) shall not be deemed to be invalid on account of shortfall in the period of notice specified under sub-section section (1) where a suit or proceeding is filed after expiry of the period given thereunder.
18. In this regard, the transitory provisions made under the Act 3 of 2003 are also required to be adverted to and the same read as under:
"3. Transitory provisions:- The provisions of Section 106 of the principal Act, as amended by Section 2, shall apply to:-
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act:
12 ML,J SA_752_2001
(b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement."
19. A reading of the above provisions would make it clear that the amended provisions were made applicable for all notices prior to amendment but no suit or proceedins are initiated. In the present case, admittedly the proceedings are commenced before this Court before the amendment was came into force. Therefore, the question to be considered now is whether the amended provisions apply retrospectively or prospectively?
20. It is needless to observe that the Parliament and the State Legislature have plenary powers to make any law either retrospectively or prospectively. The normal rule of interpretation is that when amendments were made to the substantive law, they normally presumed to be operated prospectively unless any contrary is made out from the legislation and the amendments to the procedural laws are presumed to be retrospective.
21. In this regard, it is appropriate to refer to the decision of the Constitutional Bench of the Apex Court in Assistant 13 ML,J SA_752_2001 Commissioner of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd.1, wherein it has been held that when the amendment to the substantive law was given retrospective effect, such an amendment has to satisfy the test of reasonableness. In the said case, the Apex Court held that imposition of tax retrospective effect is not amounting to unreasonableness.
22. It is also appropriate to refer to another Constitutional Bench of the Apex Court in State of Tamil Nadu v. Arooran Sugars Ltd.2, wherein it has been held as follows:
"The power of the legislature to amend, delete or obliterate a statute or to enact a statute prospectively or retrospectively cannot be questioned and challenged unless the court is of the view that such exercise is in violation of Article 14 of the Constitution. It need not be impressed that whenever any Act or amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be effected one way or the other. In every case, it cannot be urged that the exercise by the legislature while introducing a new provision or deleting an existing provision with retrospective effect per se shall be violative of Article 14 of the Constitution. If that stand is accepted, then the necessary corollary shall be that legislature has no power to legislate retrospectively, because in that event a vested right is effected; of course, 1 1979 AIR 169 2 (1997) 1 SCC 326 14 ML,J SA_752_2001 in special situation this Court has held that such exercise was violative of Article 14 of the Constitution.
23. A reading of the above judgment would also show that the legislature in India has the Constitutional power to postulate the legislate with retrospective, and such a law is not per se violative of Article 14, and unless it is violative of Article 14, the Courts cannot interfere with the applicability of retrospective effect merely because it has given retrospectively affecting the rights of the parties.
24. It is also relevant to refer to the decision of the Apex Court in Virender Singh Hooda v. State of Haryana3, wherein it has been held that every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect.
25. In the present case, the amendment was made to Section 106 of the Act on the basis of the recommendations made by the Law Commission in its One Hundred and Eighty-First Report. The Law Commission while making recommendation took cognizance of injustice being caused 3 W.P.(Civil) No.215 of 2022, dated 27.10.2004 15 ML,J SA_752_2001 to the landlord on account of technical flaws in issuing the notice. This injustice was tried to get removed by way of amendment which is given hereinbefore.
26. The similar issue with regard to applicability of the amended provision either retrospectively or prospectively came for consideration before the High Court of of Bombay in Allahabad Bank vs Prakash Shankar Wagh4 and it has been held that the amended provision applies retrospectively.
27. Even by seeing the transitory provision, the amended Act was made applicable to the notices issued prior to amendment but no suit or proceeidns were commenced. This appeal was filed in the year 2001 and the amendment was made in the year 2003. This means, the proceedings before this Court is continuation of suit proceedings. Therefore, the amended provisions apply to the pending proceedings in terms of the transitory provision referred herein before.
4 AIR 2006 Bom. 321 16 ML,J SA_752_2001
28. In the present case, though notice was issued under Section 106 of the Act determining the tenancy from the date of issuance of notice, the suit was filed after the period contemplated under Section 106 of the Act. Therefore, the benefit of amended provisions contained in sub-section (3) of Section 106 of the Act is extendable to the plaintiff. If such benefit is extended, the notice issued by the plaintiff under Section 106 of the Act does not suffer from any defect, and any proceedings based on such notice after expiry of 15 days time, as contemplated under Section 106 of the Act, do not suffer from any defect. Therefore, I held that the benefit of amended Act is applicable to the present suit and the notice issued by the plaintiff determining the tenancy does not suffer from any defect. Therefore, the appeal requires to be dismissed.
29. In the result, the Second Appeal is dismissed, confirming the judgment and decree dated 27.06.2001 in A.S.No.201 of 1996 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad, on different grounds, but not on the grounds on which the lower Appellate Court allowed the first appeal. The appellant is directed to vacate 17 ML,J SA_752_2001 the suit premises within a period of two months from the date of this order; failing which, the respondent is entitled to take appropriate steps against the appellant for eviction. There shall be no order as costs. Miscellaneous petitions, if any, pending, shall stand closed.
________________ M.LAXMAN, J Date: 08.06.2022 Note: L.R. Copy to be marked.
B/o. TJMR