Allahabad High Court
Dr. Rahul Ameen Khan vs Mohd. Kaleem on 5 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 07 Case :- S.C.C. REVISION DEFECTIVE No. - 151 of 2017 Revisionist :- Dr. Rahul Ameen Khan Opposite Party :- Mohd. Kaleem Counsel for Revisionist :- Manish Dev Singh Counsel for Opposite Party :- Rajesh Rai Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Manish Dev Singh, learned counsel for defendant-revisionist/ tenant and Sri R.U. Ansari along with Sri Rajesh Rai, learned counsels for the plaintiff-respondent/ landlord.
Facts:-
2. Briefly stated facts of the present case are that undisputedly the plaintiff-respondent is the owner and the landlord of House No.E-54, G.T.B. Nagar, Kareli Allahabad, who has let out the aforesaid house to the defendant-revisionist in November, 2004 on a monthly rent of Rs.20,000/-. Subsequently, in March, 2005, the ground floor, first floor and second floor of the house was let out to the defendant-revisionist on a monthly rent of Rs.22,250/-. Thereafter, since September, 2008, the defendant-revisionist is continuing as tenant only on the ground floor at a monthly rent of Rs.10,000/-.
3. Vide notice dated 06.04.2011, the plaintiff-respondent terminated the tenancy of the defendant-revisionist. The said notice was replied by the defendant-revisionist but he did not vacate the tenanted portion of the disputed house. Consequently, the plaintiff-respondent filed S.C.C. Suit No.35 of 2011, which has been decreed by the impugned judgment dated 26.09.2017 and the decree dated 12.10.2017. Aggrieved with the aforesaid judgment and decree, the defendant-revisionist has filed the present revision under Section 25 of the Provincial Small Cause Court Act, 1887.
Submissions:-
4. Submission of learned counsel for the defendant-revisionist is that the notice under Section 106 of the Transfer of Property Act said to have been issued by the plaintiff-respondent, was not proved. While deciding the issues No.1, 2 and 4, the court below found that the entire rent was paid by the defendant-revisionist to the plaintiff-respondent and thus there was no arrears of rent. He, therefore, submits that since this finding has been recorded and issues No.1, 2 and 4 were decided against the plaintiff-respondent, therefore, it was not permissible for the court below to decree the suit on the ground that tenancy has been determined by the notice dated 06.04.2011. In support of his submission, learned counsel for the defendant-revisionist has relied upon a decision of this court in Vinod Kumar Shukla (since dead) and others vs. Gyan Mandal Ltd., Varanasi, 2017 (123) ALR 865 and the judgment of Hon'ble Supreme Court in H. Siddiqui (dead) by LRs. vs. A ramalingam, (2011) 4 SCC 240 (Paras-9 to 14 and 17).
5. Learned counsel for the plaintiff respondent submits that the tenancy was lawfully terminated by the plaintiff-respondent. After expiry of the period of notice, the defendant-revisionist has no right to occupy the disputed portion of the house in question as tenant in view of the provisions of Section 106 read with Sections 108 and 111 of Transfer of Property Act. He further submits that the impugned judgment and decree has been passed well in accordance with law and, therefore, it requires no interference.
6. I have carefully considered the submissions of learned counsel for the parties and perused the record of the revision before me.
Discussion and Findings:-
7. There is no dispute that the plaintiff-respondent is the owner and landlord of the disputed house in a portion of which the defendant-revisionist is tenant at a monthly rent of Rs.10,000/-. Thus, provisions of U.P. Act 13 of 1972 are not applicable. The issue (Nos.) 1, 2 and 4 have been decided by the court below against the plaintiff-respondent holding that the defendant-revisionist has paid the entire rent. Issue No.3 regarding validity of notice was decided against the defendant-revisionist holding the notice under Section 106 of the Act to be valid.
8. The issue Nos.5 and 6 were also decided against the defendant-revisionist holding that since as per notice dated 06.04.2011, the tenancy has been determined, therefore, the defendant is liable to vacate and handover possession of the tenanted portion of the house to the plaintiff.
9. Undisputedly, the tenancy in the present set of facts was governed by the provisions of the Transfer of Property Act, 1882. Section 106 of the Act provides for a notice for termination of lease. Section 111 of the Act provides for determination of lease as under:
"111. Determination of lease. - A lease of immovable property determines.-
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event-- by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-- by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
10. Undisputedly, the tenancy of ground floor started from the month of September, 2008 on a monthly rent of Rs.10,000/- was a lease from month to month basis, terminable on the part of either lessor or lessee by 15 days' notice under Section 106 of the Act. The tenancy was terminated by the plaintiff-respondent by notice dated 06.04.2011. In paragraphs-7 and 9 of the notice dated 06.04.2011 issued by the plaintiff-respondent to the defendant-revisionist, it was clearly mentioned as under:
"7. That my client and his father-in-law requested you several times orally and even in writing to vacate the premises and hand over vacant possession to my client or his father-in-law and pay the arrears but you always avoided to comply.
9. That having in view of your conduct, behavior and staggering default in payment of rent, my client no longer wants to keep you as tenant and terminates your tenancy immediately after the expiry of the period of this notice."
11. Thus, in view of the provisions of Section 111(h) of the Act, the tenancy of the defendant-revisionist stood terminated on expiration of period of notice. Therefore, the defendant-revisionist should have handed over the vacant and peaceful possession of the disputed portion of the house to the plaintiff-respondent.
12. In the case of Atma Ram Properties (P.) Ltd. vs. Federal Motors (P.) Ltd., (2005) 1 SCC 705 (Para-11), Hon'ble Supreme Court held as under:
"Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant."
13. In the case Vasantkumar Radhakisan Vora vs Board Of Trustees Of The Port Of Bonbay, (1991) 1 SCC 761 (Para-6) Hon'ble Supreme Court held that by issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Section 106 expires. On expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession in due process of law.
14. In the case of Om Prakash Gupta vs Ranbir B. Goyal, (2002) 2 SCC 256 (para-8), Hon'ble Supreme Court held that even where the Transfer of Property Act is not applicable yet the principles flowing from the provisions of the Transfer of Property Act may safely be taken as a guide to work out the mutual rights and obligations of the parties under the general law.
15. In the case of Dattopant Gopalvarao vs. Vithalrao Marutirao Janagaval, (1975) 2 SCC 246, Hon'ble Supreme Court held that where the lease is determined by efflux of time no notice is necessary. Similar view was taken by Hon'ble Supreme Court in the case of Satendra Singh vs Vinod Kumar Bhalotia, (2014) 16 SCC 674 (paras-10 & 11).
16. Thus, where the tenancy is governed by the provisions of the Transfer of Property Act, 1882, it comes to an end by determination of lease under Section 111 of the Act. On expiry of the period of notice or on expiry of period provided under the Statute, the right of the tenant to continue in possession of the tenanted premises comes to an end. If the tenant continues to occupy the premises even after the tenancy comes to an end, then he becomes liable to pay damages for use and occupation of the premises at the rate on which the landlord could let out the premises on being vacated by the tenant. On expiry of the period prescribed in the notice or in the Statute, the lease becomes inoperative and the lessor acquires right to have the tenant ejected. In such circumstances, if the tenant fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession of the disputed accommodation following due process of law.
17. In the present set of facts, the tenancy was undisputedly determined by the plaintiff-respondent by notice dated 06.04.2011. On expiry of notice, the tenancy stood determined in terms of the provisions of Section 111(h) of the Act. Since the defendant-revisionist has not handed over the vacant and peaceful possession of the disputed accommodation to the plaintiff-respondent, therefore, the plaintiff-respondent filed S.C.C. Suit No.55 of 2011, which has been lawfully decreed by the impugned judgment dated 26.09.2017. The tenancy came to an end on expiry of period of notice determining the lease. Therefore, the right of the revisionist/ tenant to continue in possession of the disputed accommodation came to an end.
18. Thus, I do not find any infirmity in the impugned judgment.
19. In result, the revision fails and is hereby dismissed.
Order Date :- 05.01.2018 NLY