Gujarat High Court
Anilkumar Lallubhai Vaghela vs Arvindkumar Satyarayan Sahu on 15 March, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 251 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 251 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ANILKUMAR LALLUBHAI VAGHELA
Versus
ARVINDKUMAR SATYARAYAN SAHU
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Appearance:
MR DHAVAL M BAROT(2723) for the Appellant(s) No. 1
MR MANAN K PANERI(7959) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/03/2024
CAV JUDGMENT
1. By way of this appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), Page 1 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined the appellant has challenged the judgment and decree dated 7.4.2023 passed by the learned Principal District Judge, Anand in Regular Civil Appeal no.127 of 2022 confirming the judgment and decree dated 30.7.2022 passed by the learned 3rd Additional Senior Civil Judge, Anand in Regular Civil Suit no.97 of 2019.
2. Facts of the case suggest that the Original Plaintiff had, in the year 2015, from 16.05.2015 to 15.04.2016, rented the Suit Property to the Original Defendant i.e. the present appellant for a monthly rent of Rs.6500/- with a notarised agreement. Thereafter, again by notarised agreements between the Original Plaintiff and the Original Defendant on 25.4.2016, the period decided was from 1.5.2017 to 31.5.2017. On 3.8.2017, the rent agreement was drawn for the period between 1.8.2017 to 31.6.2018. The last agreement executed on 1.9.2018, was agreed to lease the Suit Property on rent from 01.07.2018 to 30.10.2018. Therefore, time limit of the Page 2 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined agreement expired on 30.10.2018. Thereafter, the Original Plaintiff asked the Original Defendant to vacate the house and return the vacant peaceful possession of the house. The Original Defendant requested the Original Plaintiff to give three to four months time to vacate the Suit Property and also paid rent till Feb-2019. Thereafter, when the Original Defendant did not vacate the house beyond February-2019, again the Original Plaintiff directed the Original Defendant to vacate the Suit Property and also demanded the rent of February-2019, March-2019 and April-2019. The Original Defendant did not vacate the suit property and also did not pay the rent.
3. The main contention of Advocate Mr. Dhaval M. Barot for the appellant was that the First Appellate Court committed an error of law and facts by not observing that there was no compliance of the provision of Section 106 of the Transfer of Property Act, 1882 (hereinafter Page 3 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined referred to as "the T.P. Act"). If the status of a tenant i.e. of the present appellant is required to be considered as tenant holding over, then minimum fifteen days notice is required to be given before filing of the suit.
4. Advocate Mr. Barot contended that the exemption under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'Gujarat Rent Act') is required to be pleaded specifically and without pleading benefit of exemption of non- applicability of the Rent Act cannot be given.
5. That the First Appellate Court as well the Trial Court committed an error by not appreciating and interpreting the evidence and procedure in right perspective. Both the Courts have erred in not considering the appellant as tenant by virtue of the agreement and has erred to put him in the status of trespasser and that there cannot be any eviction without due process of law. Page 4 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024
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6. Advocate Mr. Barot submitted that entertaining purshis Exh.145 at the fag end of the trial, whereby the plaintiff or landlord has waived his ground of bonafide requirement, is an error of the Trial Court when actually the suit was filed under the provision of Section 13 of the Gujarat Rent Act. Advocate Mr. Barot submitted that there was no amendment in the plaint nor was any additional evidence adduced, when the trial started with recording of evidence under the Rent Act and thus, the Trial Court has committed an error in deciding the suit under the general civil law.
6.1 Advocate Mr. Barot has placed reliance on the following judgments to support his arguments.
(a) Govindbhai Parshottamdas Patel & Ors. v. New Shorrock Mills, Nadiad, 1983 (0) AIJEL-HC 203831.
(b) Nanubhai Paragji v. Chhaganlal Ranchhodji Desai, LAWS (GJH) 1993 6 14.Page 5 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024
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(c) Sarabhai Parshottamdas Patel v. New Shorock Mills, Nadiad, 1984 GLH (UJ) 2.
(d) Rameshbhai Babarbhai Jagirdar v. Mahendrabhai Chhotalal Joshi, LAWS (GJH) 1996 7 41.
(e) Om Parkash v. Ashok Kumar, LAWS (P&H) 2013 8
524.
7. Per contra, Advocate Mr. Manan K. Paneri submitted that the grounds raised by the appellant claiming himself as tenant under the Gujarat Rent Act would not make this Second Appeal maintainable since sub-section (2) of Section 29 of the Gujarat Rent Act which is the provision for appeal, would not allow the Second Appeal to lie.
7.1 Advocate Mr. Paneri referring to the plaint stated that in very clear and specific terms by way of pleading, the plaintiff had informed the Court that the suit property would not be governed by the Gujarat Rent Act, as the house Page 6 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined property was constructed after purchasing the plot in 2008, clearly pleading that the property was constructed after the year 2001. Advocate Mr. Paneri submitted that Section 4(1-A) of the Gujarat Rent Act exempts its application from the Gujarat Second Amendment Act, 2001 which came in force on 5.9.2001.
7.2 Advocate Mr. Paneri further submitted that the contention regarding applicability of Section 106 of the T.P. Act would have no bearing to the present facts of the matter, since the lease got terminated by efflux of time, the cause of action of the suit mentions, in explicit terms that on completion of lease period on 30.10.2018 as noted in the agreement dated 1.9.2018, the present appellant as defendant of the suit failed to hand over the vacant and peaceful possession of the suit.
7.3 Advocate Mr. Paneri in context to the facts of the case stated that the land as plot was purchased by sale deed dated 13.10.2008 with Page 7 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined registration no.7522 and thereafter, two storey construction was made and with the monthly rent of Rs.6,500/- for the first time by way of notorised agreement was given on rent for eleven months from 16.5.2015 to 15.4.2016 and again by notarised writing on 25.4.2016, agreement was executed from 1.5.2017 to 31.5.2017 and then on 3.8.2017 for the period from 1.8.2017 to 31.6.2018 was given on lease, while the last agreement was executed on 1.9.2018 for the period of only four months only to facilitate the defendant to have other accommodation. Thereafter, the defendant extended time, on the pretext of vacating the suit property, and till January, 2019 had given the amount equivalent to the rent amount as had been decided in the earlier agreement.
7.4 Advocate Mr. Paneri submitted that the lease period ended on 30.10.2018, inspite of that, possession of suit property was not handed over while on the other hand, defendant filed Regular Page 8 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined Civil Suit no.33/2019 on 18.2.2019 which itself proves that the landlord never consented for the continuation of lease for him to claim holding over to bring out a new tenancy. Advocate Mr. Paneri further submitted that Exh.49 is a document which was to be executed on 13.2.2019 whereby the defendant had again asked for a further period of four months to vacate the premises, the landlord wanted to give him time, but instead present appellant preferred Regular Civil Suit no.33/2019 alleging that the landlord had threatened to throw out the domestic household items. Advocate Mr. Paneri thus contended that the suit of the present appellant itself proves that the landlord had no intention to allow the defendant to continue in the possession, but since the possession cannot be taken forcibly, the suit was filed by following the due process of law.
7.5 Advocate Mr. Paneri relied upon the judgment in the case of Pankajbhai Murabhai Dhoria v. Page 9 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024
NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined Shantilal Vallabhdas Jogia decd. through Legal Heirs & Ors., 2014 (2) GLR 1761 urging to consider the present appellant as trespasser, wherein the judgment clarifies the effect of the provision of amended Act, 2001.
8. Having heard the learned advocates appearing for the respective parties on record, to consider the maintainability of the appeal, it is required to be noticed that both the Trial Court and the First Appellate Court have given concurrent findings to the facts of the case.
9. Section 29 of the Gujarat Rent Act is provided for filing of appeal. The provision is reproduced hereunder to consider the maintainability of Second Appeal:-
"29. Appeal.-
(1) Notwithstanding anything
contained in any law, an appeal
shall lie-
[(a) in the City of Ahmedabad, from a decree or order made by the Court of Small Causes, Ahmedabad, exercising Page 10 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined jurisdiction under section 28 to a bench of two judges of the said court which shall not include the judge who made such decree or order;]
(b) [elsewhere from a decree] or order made by [a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, 145 [or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause
(c)of sub-section (2) of section 28] or by] a Civil Judge exercising such jurisdiction, to the District Court:
Provided that no such appeal shall lie from--
(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908 (V of 1908);
(II) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or value of the subject matter of which does not exceed-
[(i) here such suit or proceeding is instituted in the City of Ahmedabad, two thousand rupees, and] Page 11 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined
(ii) where such suit or proceeding is instituted elsewhere the amount upto] which the Judge or Court specified in clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for the time being in force;
(iii) an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeeding in which an appeal lies;
(iv) an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him.] [(1A) Every appeal under sub-
section (1) shall be made within thirty days from the date of the decree or order, as the case may be :
Provided that in computing the period of limitation prescribed by this sub-section the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908 * shall, so far as may be, apply.] [(2) No further appeal shall lie against any decision in appeal under Page 12 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.]"
10. Here the judgment and decree in Regular Civil Suit no.97 of 2019 dated 30.7.2022 was passed by the learned 3rd Additional Senior Civil Judge, Anand. Against that judgment, Regular Civil Appeal no.127 of 2022 was preferred before the learned Principal District Judge, Anand. No preliminary objection was raised before the Senior Division Civil Court challenging the jurisdiction to entertain the suit. Sub-section (2) does not permit Second Appeal to the High Court.
11. The pleading was with the details of purchase of the plot and thereafter, constructing the residential house, the premise was constructed after the year 2008, the plot on which construction was made was purchased on 13.10.2008. The suit property is on ground Page 13 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined floor, one room, kitchen, drawing room and on the first floor, two bed rooms, kitchen and toilet bathroom with Municipal no. 1/12/25/29/4/29 at Anand Municipality.
12. The suit was filed praying for possession of the premises which was exempted from the operation of the Gujarat Rent Act.
13. The Gujarat Rent Act shall not apply to any premises constructed on or after the commencement of the Gujarat Amendment Act, 2001 (hereinafter referred to as "the amending Act"), which has come in force from 5.9.2001 with amending Section (1-A) in Section 4 of exemption. Sub-section (1-A) to be read with the explanation to it, is as under:-
"4(1-A) This Act shall not apply to.-
(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rents Control (Gujarat Second Amendment) Act, 2001 (Gujarat 27 of 2001) Page 14 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined (Hereinafter referred to as "the amending Act");
(b) any existing premises which is self-occupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement;
Explanation.- For the purpose of this section "existing premises"
means any premises which exists on the date of commencement of the amending Act."
14. The Gujarat Rent Act would not be applied to the property which was constructed on or after the date of Amending Act, 2001 as referred so in clause (a) of sub-section (1-A). The explanation to sub-section (1-A) read with clause (a)(b) clarifies the meaning of the expression "existing premises" which means, any premises which exists on the date of commencement of the amending Act, which is 5.9.2001.
15. The issue of immunity of Rent Act to the premises was considered by the Hon'ble Supreme Court in the case of Parwati Bai v. Radhika, Page 15 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined reported in (2003) 12 SCC 551, wherein it was held that the immunity from operation of the M.P. Rent Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempted under Section 3(1)(b) of the Act though the suit is not between the Municipality as landlord and against its tenant. The Court has recorded its observation in Paragraph 5 to give a clarity to understand the issue.
"5. It is well settled by a decision of this Court in Bhatia Cooperative Housing Society Ltd. vs. D.C. Patel 1953 (4) SCR 185 wherein pari materia provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration of this Court. It was held that the exemption is not conferred on the relationship of landlord and tenant but on the premises itself making it immune from the operation of the Act. In identical facts, as the present case Page 16 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined is, the decision of this Court was followed by the High Court of Madhya Pradesh in Radhevlal Somsingh vs. Ratansingh Kishansingh 1977 MPLJ, 335 and it was held that the immunity from operation of the Madhya Pradesh Accommodation Control Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempt under Section 3 (1)(b) of Act though the suit is not between the municipality as landlord and against its tenant. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylal's case. It is unfortunate that this decision binding in the State of Madhya Pradesh was not taken note of by the courts below as also by the High Court."
16. In the case on hand, on 5.9.2001, the date exempting the operation of the Gujarat Rent Act, the suit premises was not in existence since was constructed after the amending Act. Thus, the suit premises will not be governed by the Page 17 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined Gujarat Rent Act. As has been made clear in Parwati Bai's case (supra), the immunity is in respect of the premises and not with respect to the parties.
17. So on the date of the very first notarised agreement when the suit premises was given on the monthly rent of Rs.6,500/- for eleven months from 16.5.2015 to 15.4.2016, the property being exempted from the application of the Gujarat Rent Act, there would not be any agreement under the provision of the Gujarat Rent Act. Thus, all subsequent agreement, too cannot put the present appellant in the status of a tenant under the Rent Act. After 30.10.2018, the plaintiff as landlord had no intention to allow defendant to remain in possession of suit property. The last executed agreement Exh.48 was for a period of four months as noted from 1.7.2018 to 30.10.2018. The rent was paid upto 30.1.2019 while no rent was paid by the present appellant to landlord or received thereafter, while the Page 18 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined present appellant filed a Regular Civil Suit no.33 of 2019 on 18.2.2019 praying for declaration and injunction against the landlord and protection of the Court from dispossession. The landlord's suit i.e. Regular Civil Suit no.97 of 2019 was filed on 12.4.2019.
18. After the evidence led in the original suit, the present appellant was ordered to hand over peaceful, vacant and physical possession of the suit property with the amount of Rs.6,500/- per month from the date of the suit till decree and from date of decree till possession of the suit property with mense profit at the rate of Rs.6,500/- per month. The judgment dated 30.7.2022 was challenged by the present appellant as defendant of the suit before the learned Principal District Judge, Anand.
19. The First Appellate Court thus raised the points of determination as under:-
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(i) Whether the learned Trial Court erred in holding that the original plaintiff was the owner of the suit property and the suit property rented by the original plaintiff by way of rent agreement had expired by efflux of time?
(ii) Whether the learned Trial Court erred in holding that the original plaintiff demanded the original defendant to vacate the house, however, the original defendant requested for some time to vacate the house and thereafter, did not pay the rent from February-2019 to April-2019?
(iii)Whether the learned Trial Court erred in holding that the suit filed by the original plaintiff was not illegal and was maintainable?
(iv) Whether the learned Trial Court erred in allowing the suit and whether the judgment and decree of the learned Trial Court Page 20 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined requires interference?
20. The learned Appellate Court concurred with the learned Trial Court to observe that the rent agreement expired by efflux of time; original plaintiff demanded from the original defendant the vacant house, however, original defendant requested for time and thereafter, did not pay the rent from February, 2019 to April, 2019. That, the suit filed by the original plaintiff was not illegal and was maintainable. Thus, the First Appellate Court did not find any error in the suit being allowed and did not find any requirement to interfere in the judgment and decree.
21. Learned advocate Mr. Barot placed reliance on the judgment of Govindbhai Parshottamdas Patel (supra) would not draw proximity to the fact of the present case. The facts in the case of Govindbhai Parshottamdas Patel (supra) is on the footing that when the defendant appeared in the suit and filed written statement, he contended Page 21 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined inter-alia that he was a tenant and not licensee of the suit premises and that the Court had no jurisdiction to entertain and decide the suit. The issue raised brought conflict to the status of being a 'licensee' or 'tenant' under the Gujarat Rent Act and has held that the tenant was entitled to protection under Section 28 and such tenant cannot be evicted on ordinary Civil Suit.
22. This issue would not bear relevancy in the present matter since the suit premises itself is exempted from the operation of the Gujarat Rent Act, hence, present appellant cannot invoke Section 28 of the Rent Act and claiming any protection where the Rent Act itself will not be applicable to the suit premises.
23. The answer to this could be well available in the judgment of Nanubhai Paragji (supra) referred by learned advocate Mr. Barot, wherein the question came to be decided was about the applicability of Section 28 of the Bombay Rent Page 22 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined Act, where the dispute with regard to the point of jurisdiction of the Court on the basis of Section 28 of the Act was not raised before the Courts. It was noted that if the question pertains to inherent lack of jurisdiction of the Court, then such point can be permitted to be raised at any stage of the proceedings even if it was not taken before Court or Courts below. It was held that Section 28 of the Act will be attracted to a case if three conditions are satisfied. In the first place, the relationship between the parties should be that of landlord and tenant. Secondly the claim should relate to the recovery of land or possession of the rented premises. Thirdly, the claim or the question in the proceeding is required to be dealt with or decided under the Act.
24. These three conditions do not get satisfied to the present facts of the case, since the relation of plaintiff and defendant is not as landlord and tenant under Gujarat Rent Act as Page 23 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined the suit premises is exempted from the application of Gujarat Rent Act. The possession claimed of the suit premises therefore cannot be under the Gujarat Rent Act and therefore, no question would be required to be dealt with under the Gujarat Rent Act.
25. The contention raised is against Exh.145. The purshis filed by the plaintiff before the learned Trial Court expressing intention of not pressing the ground of bonafide requirement. Advocate Mr. Barot for the appellant submitted that it was a case which was pleaded under Section 13 of the Gujarat Rent Act. Hence, the learned Trial Court had fallen in error in allowing the plaintiff to waive the ground of the bonaifde requirement of the property.
26. From perusal of Exh.145, it transpires that no mention of Section 13 of the Gujarat Rent Act has been made in the purshis, nor there is any mention of Section 13 in the plaint. The plaintiff had contended breach of the agreement. Page 24 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024
NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined The said contention raised by the appellant fails merits since Order 2 Rule 2 of CPC permits the plaintiff to intentionally relinquish any portion of his claim and the permission of the Court is not necessary and for such intentional relinquishment, there is also no necessity to amend the suit. Here the plaintiff had not filed purshis to omit the relief prayed for. Hence, in view of provision of Order 2 Rule 2 of the CPC read with sub-rule (2), it has been rigthly observed by the First Appellate Court about the judgment of Ram Swaroop v. Vishnu Narayan Inter College, AIR 1987 SC 1242 with regard to the object and purpose of pleading. In the case of Ram Swaroop (supra), it has been held as under:-
"The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach Page 25 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined should be adopted to defeat justice on hair splitting technicalities. sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the inquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
27. Exh.145 would not have made any difference in the suit, since it is not for relinquishment of any relief prayed for. Exh.145 is a declaration before the learned Trial Court of the plaintiff that he would not press the relief on the ground Page 26 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined of bonafide requirement, while wanted to continue the suit on the ground of praying for possession on the ground of determination of the agreement by efflux of time. Both the Courts have considered the issue and had noted the evidence that Exh.48, the rent agreement was for a period of 3 months i.e. from 1.7.2018 to 30.10.2018 and the agreement expired on 30.10.2018 and thus, it was considered that the plaintiff had proved beyond doubt that the agreement had expired by efflux of time. Exh.48 was placed on record by the present appellant as the original defendant of the suit.
28. Exh.49 was placed on record to bring the facts that the landlord wanted to even grant further four months period to the defendant - present appellant to evict the premises. The defendant in his deposition stated that he was not aware of Exh.49 dated 13.2.2019 while he admitted that Exh.48 had expired by efflux of time and that he had paid rent to the original plaintiff till Page 27 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined 31.1.2019 and has also admitted that thereafter, he has not paid any money in the form of rent to the original plaintiff. The very fact of filing of Regular Civil Suit no.33 of 2019 by the defendant itself proves that the landlord was not ready to allow the defendant to remain in possession of the suit. In Regular Civil Suit no.33 of 2019, no interim relief was granted. Now even after expiry of the rent agreement, the present appellant is still in possession of the suit premises without paying any rent.
29. It has been contended by learned advocate Mr. Paneri by relying upon the judgment of this Court in the case of Pankajbhai Murabhai Dhoria (supra) that the premises given on rent for 11 months or less as per the agreement, on expiry of the term, the status of the appellant thus becomes as trespasser. Advocate Mr. Paneri thus stated that in the judgment, it has been observed that since Section 4(1-A)(b) of the Gujarat Rent Act would not make the Act Page 28 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined applicable, hence, the suit of eviction would be maintainable by the Civil Court and on determination of the agreement by efflux of time, the possession of the defendant would become as a trespasser. Mr. Paneri further submitted that notice under Section 106 of the T.P. Act would not be necessary as the landlord had no intention to allow the defendant to remain in the possession. Mere acceptance of rent for a period of three months would not be a determinative factor as the intention of the landlord is an important factor which requires to be considered to note whether there was actual waiver from the side of the landlord.
30. In Bhavanji Lakhamshi & Ors. v. Himatlal, AIR 1972 SC 819, it was held that mere acceptance of amount equivalent to rent by a landlord from tenant in possession after a lease had been determined either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in Page 29 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined the act, cannot be regarded as evidence of a new agreement of tenancy. In the case of Sarup Singh Gupta v. S. Jagdish Singh & Ors., (2006) 4 SCC 205, where the case was raised on the fact of acceptance of rent by the landlord after service of notice to quit and before initiation of eviction suit, the question for consideration was whether it amounts to waiver of notice or there would be an inference of waiver, wherein it has been held that, for inference of such waiver, necessary condition is that there must be some act on the part of person giving notice, which evinces an intention to treat the lease as subsisting, and further the express or implied consent of person to whom such notice is given must also be established, and, whether such intention to waive the notice has been shown by the act concerned, is essentially a question of fact, and court must consider all relevant facts and circumstances. The mere fact that rent has been tendered and accepted after service of such notice cannot be determinative. There has to be Page 30 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined other evidence to prove or establish that the landlord intended such waiver, wherein no such intention had been evinced by acceptance of such rent by the landlord, since even after accepting the rent tendered, landlord did file a suit for eviction and even while prosecuting the suit accepted rent which was paid to him by the tenant. In any case even if rent was neither tendered nor accepted, landlord in event of success would be entitled to payment of arrears of rent.
31. Learned advocate Mr. Barot for the appellant has also raised an issue that there was no notice under Section 106 of the T.P. Act. Determination of the lease can be by efflux of time or by notice to quit. The plaintiff as a landlord had pleaded the case that the lease was for a fixed period, here in this case, last lease vide Exh.48 was for four months.
32. The difference between the tenant holding over and tenant at sufferance has been explained in Page 31 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined the case of R.V. Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, wherein it has been observed as under:-
"7. Section 105 of the Transfer of Property Act defines "lease" of immovable property as "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer by the transferee, who accepts the transfer on such terms".
Therefore, the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money etc. and the lessee accepts the transfer on such terms. Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. Section 116 envisages the effect of holding over and provides that "if a lessee or under lessee of property remains in possession thereof after the determination of lease granted to the lessee, and the Page 32 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined 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 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". Section 106 of the TP Act deals with the duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or asserted to the appellant's continuance in possession, he cannot be treated under Sec. 116 to be a tenant holding over."
33. Thus, as referred hereinabove under Section 111 of the T.P. Act, the lease of immovable property determines by efflux of time limit limited thereby and after determination of the lease as laid down in Section 116 of the T.P. Act, the effect of holding over is when the lessor or his legal representative accepts rent from the lessee or under lessee or otherwise assents to Page 33 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined his continuing in possession, the lease is, in 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 of the T.P. Act. The holding over is inferred by conduct of parties which will bring out a new tenancy. Simple continuance in the possession of the premises after the expiry of lease period or simple acceptance of rent by the landlord would not amount to assent. Once the tenancy continues under law by holding over, then tenant has to be informed through a notice that such tenancy is terminated. In other words, notice under Section 106 of the T.P. Act would be necessary in case of a tenant by holding over.
34. In the above-referred judgment of R.V. Bhupal Prasad (supra), it is observed that the tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong, after the termination of the term or Page 34 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024 NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined expiry of the lease by efflux of time. The tenant at sufferance is therefore one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. Such possession would be by way of implication of law, when a person who has been in possession after that title has been determined, is without the consent of the person entitled. The tenant at sufferance does not create relationship of the landlord and tenant. The distinction has to be drawn between the tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. A person in possession without landlord's consent is a tenant by sufferance. It is only lawful possession which is protected. The tenant by sufferance would have no legal right to protect the possession. He is to be considered as a trespasser.
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35. In view of the reasons given hereinabove, since the present appellant being the defendant of the suit, has no legal right to continue in the possession of the suit property, the present appeal is required to be dismissed. No substantial question of law arises for the consideration of this Court.
36. In the result, the Second Appeal is dismissed.
The judgment and decree dated 7.4.2023 passed by the learned Principal District Judge, Anand in Regular Civil Appeal no.127 of 2022 as well as the judgment and decree dated 30.7.2022 passed by the learned 3rd Additional Senior Civil Judge, Anand in Regular Civil Suit no.97 of 2019 are confirmed. However, there shall be no order as to costs. Record and proceedings be sent back to the learned Trial Court forthwith.
(GITA GOPI,J) After the judgment was pronounced, Advocate Mr. Barot prayed for stay for a period of two weeks. Page 36 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024
NEUTRAL CITATION C/SA/251/2023 CAV JUDGMENT DATED: 15/03/2024 undefined Advocate Mr. Paneri has raised objection stating that the appellant is a trespasser and hence, no concession can be granted.
In view of the submissions made, the operation, execution and implementation of the judgment be stayed for a period of two weeks.
(GITA GOPI,J) Maulik Page 37 of 37 Downloaded on : Mon Mar 18 20:45:07 IST 2024