Patna High Court
Manik Lal & Ors vs Ravindra Kumar Gupta on 9 April, 2013
Equivalent citations: AIR 2013 PATNA 137, (2013) 128 ALLINDCAS 328 (PAT)
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1098 of 2008
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1. Manik Lal, son of late Bhola Prasad.
2. Dhirun Prasad, son of late Bhola Prasad.
3. Sunil Kumar, son of late Bhola Prasad.
4. Kamla Devi, wife of late Bhola Prasad.
All are residents of Mohalla- Pani Tanki Road, P.S. - Khajekalan, District-
Patna having shop at Sadiquepur, P.S.- Alamganj, Patna City, District- Patna.
.... Defendants .... Petitioner/s
Versus
Ravindra Kumar Gupta, son of Shri Surendra Prasad, resident of Mohalla-
Sadiquepur, P.S.- Alamganj, District- Patna.
....Plaintiff .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. R.K.Sinha No.2
For the Opposite Party/s : Mr. Mritunjay Prasad Singh
Mr. Dharamnath
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 09-04-2013
Heard Mr. R.K. Sinha No.2, learned counsel appearing
on behalf of the defendant-petitioners and Mr. Mritunjay Prasad
Singh, learned counsel appearing for the plaintiff-opposite party.
This civil revision application under section 14(8) of the
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 is
directed against the judgment and order dated 3.6.2008 passed by
the learned Munsif, Patna City, District- Patna in Title (Eviction)
Suit No.26 of 2007, whereby the learned court below while
decreeing the suit in favour of the plaintiff has directed the
defendant-petitioners to hand over the vacant possession of the suit
property to the plaintiff within a period of thirty days from the date
Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 2
of the judgment and order.
This civil revision application was heard and under an
dated 4.8.2008 was admitted for hearing and the lower court
records were summoned. The defendant-petitioners were directed to
make payment of the current as well as arrears of rent. It is not in
dispute that the interim order passed by this Court admitting the
civil revision application has not been violated by the defendant-
petitioners.
For the sake of convenience, I shall be referring to the
status of the parties as it was occurring at the stage of trial. The suit
property is a shop admeasuring 8'x10' bearing Holding No.
81/108(A) in Circle No.100/98 which forms part of M.S. Plot
No.2563, Sheet No.193, Ward No.20/26/44/57 situated in Mohalla-
Sadiquepur, P.S.- Alamganj, P.O.- Gulzarbagh, Patna City in the
town and district of Patna. The details of the shop in question are
mentioned in Schedule-I to the plaint. The suit property along with
other land was purchased by the plaintiff along with his wife from
one Banke Bihari Lal under a registered sale deed dated 4.2.2004. It
is the case of the plaintiff that upon oral partition taking place in
between him and his wife, whereas three shops along with Parti
land were allotted to the share of wife towards the southern part of
the holding, the plaintiff was allotted the other part of the holding
Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 3
comprising of 3 shops on the northern part. The name of the
plaintiff has been duly mutated in the holding. It is the case of the
plaintiff that his eldest son, namely, Ankit Kumar Gupta aged about
20 years was sitting idle and wanted to start a hardware shop in the
premise occupied by the defendants and which was ideally suited
for the said business purpose. It is further the case of the plaintiff
that despite request being made to the defendants to vacate the shop
in question in view of his bona-fide requirement for the same, the
defendants after agreeing to vacate the same, later on retracted and
refused to do so and which led to filing of the suit in question on
grounds of bona-fide requirement and personal necessity of the said
shop. The defendants appeared and filed written statement and
while refuting the plea of bona-fide requirement and personal
necessity, the defendants relied upon a registered lease deed dated
13.9.1993executed by the erstwhile owner of the property, namely, Bankey Bihari Lal from whom the plaintiff and his wife were purchasers, to submit that in terms of the lease-deed they are entitled to continue in tenancy until expiry of 25 years of the lease- deed. It was thus sought to be contended that as the period of lease has not yet expired and would be expiring only on 13.9.2018, hence the suit is not maintainable and cannot be instituted during the period of fixed tenancy under the registered lease deed. The parties Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 4 led their respective evidence and the learned trial court by the judgment and order impugned has decreed the suit requiring the defendants to hand over the vacant possession of the premises to the plaintiff and hence this civil revision application.
Mr. Sinha, learned counsel has appeared on behalf of the defendants who are petitioners before this Court. While relying upon the registered lease-deed dated 13.9.1993 which has been marked as Exhibit-A in the suit it is contended that the finding of the learned trial court as found in paragraphs 10 and 11 of the judgment and order impugned, is unsustainable. Mr. Sinha while questioning the judgment impugned has submitted that the moment the plea of fixed tenancy under a registered lease-deed was raised by the defendants it was the bounden duty of the learned trial court to have considered the same as an issue and the learned trial court in rejecting the contention on grounds that the suit has been brought on plea of bona-fide requirement and personal necessity, is an abdication of jurisdiction by the learned court below. Mr. Sinha relying upon a Division Bench judgment of this Court reported in AIR 1993 Patna page 1 (Smt. Kalawati Tripathi vs. Smt. Damayanti Devi) more particularly paragraphs 18 to 20 thereof has submitted that by transfer of the property by the lessor in favour of the plaintiff under the sale-deed in question the plaintiff has stepped Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 5 into the shoes of lessor and is bound by the rights and liabilities created under the lease and cannot shirk away therefrom. It is submitted that the plaintiff has chosen to institute the suit on grounds of bona-fide requirement and personal necessity even when he was aware of the subsisting lease which binds him in terms of the conditions contained therein by operation of law. Learned counsel in support of his submission that the defendants cannot be evicted from the suit premises until the subsistence of the lease has relied upon a judgment of the Supreme Court reported in AIR 1989 SC 1510: (1989)2 SCC 686 (Modern Hotel, Gudur vs. K. Radhakrishnaiah) more particularly paragraph 11 of the judgment, in which the Supreme Court while considering a similar issue has held that in absence of any forfeiture clause a tenancy would subsist until the continuation of the period of lease. It is submitted that these self eloquent circumstances could not have been ignored by the learned trial court while passing the judgment and order impugned.
The arguments of Mr. Sinha have been contested by Mr. Mritunjay Prasad Singh, learned counsel appearing for the plaintiff- opposite party herein. While supporting the contention of the plaintiff that the suit primarily rested on the plea of bona-fide requirement and the personal necessity of the plaintiff for the Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 6 settlement of his son, it is argued that the terms of lease would not bind the transferee in view of the surrender of the defendants to the tenancy under the plaintiff. To support such contentions Mr. Singh has submitted that although the lease deed envisaged a payment of Rs.600/- by way of rent, of which Rs.300/- was to be adjusted against the advance given by the father of the defendants to the erstwhile owner of the property, namely, Bankey Bihari Lal but the very fact that the said condition has been given a go-bye and that the defendants are making payment of rent at the rate of Rs.800/- per month is an implied surrender of the tenancy under the earlier lease. In support of his submission Mr. Singh has relied upon a receipt stated to have been issued by the original tenant Bhola Prasad and is dated 30.8.2003 in which the original tenant Bhola Prasad has mentioned that the entire advance amount has been adjusted and that fresh tenancy would commence with effect from 30.8.2003 at the rate of Rs.800/-. Relying upon the said receipt Mr. Singh sought to canvass that this adjustment would bring an end to the earlier tenancy and a fresh tenancy continued thereafter under the plaintiff. Mr. Singh in support of his contention has relied upon a judgment of the Supreme Court reported in AIR 1993 SC 307 (P.M.C. Kunhiraman Nair vs. C.R. Naganatha Iyer), more particularly paragraphs 9 and 10 of the judgment. Mr. Singh has Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 7 also sought to refer to a judgment of the Supreme Court in the case of P. Dhanapal Chettiar vs. Yasodai Ammal reported in AIR 1979 SC 1745 to submit that no notice was required to be served on the defendant-petitioners for determination of the lease.
I have heard learned counsel for the parties and have perused the materials on record. The scope of revisional jurisdiction of the High Court in a matter arising under the Act is though wider than the revisional jurisdiction conferred under section 115 of the Code, is not akin to an appellate jurisdiction and is not to be conducted as a first appellate court. In fact until such time that the party complaining is able to demonstrate that there has been a failure in observance of the statutory procedure provided under the Act or the judgment in question suffers from perversity, the finding arrived at by the trial court is not to be interfered in a routine manner.
The suit in question was instituted raising a plea of bona-fide requirement arising from the personal necessity of the plaintiff for the settlement of his son. It is not in dispute that whereas the suit in question was filed by the plaintiff raising the plea of bona-fide requirement and personal necessity for settlement of his son, the plea has been contested by the defendants by filing their written statement relying upon a registered lease-deed which is Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 8 subsisting and would continue until 13.9.2018. It is not reflected from the pleading whether any attempt was made by the plaintiff to enquire from the lessor, namely, Banke Bihari Lal about the deed or to determine the lease since after purchase of the property. Although the pleading in the plaint nowhere refers to the lease-deed in question but Exhibit 4/8 led by the plaintiff stated to be a receipt issued by the original tenant accepting adjustment of the advance under the lease has been placed by the plaintiff himself. An argument has been advanced by Mr. Singh relying upon the provisions of section 111(f) of the Transfer of Property Act (hereinafter referred to as 'the T.P. Act') that the acceptance by the defendants of the tenancy under the plaintiff, was an implied surrender of the earlier lease. The submission is unsustainable on the face of it as an acceptance of tenancy cannot be termed as an implied surrender under the provisions of section 111(f) of the T.P. Act nor would result in an automatic determination of lease rather an implied surrender has to be considered in the light of the uncontroverted facts. The judgment relied upon by Mr. Singh rendered in the case of P.M.C. Kunhiraman Nair (supra) is entirely in a different context. In the said case the plaintiff himself had created a new tenancy in favour of the defendants and which was assigned by him in favour of the appellant before the Supreme Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 9 Court. It is in the said circumstances that the issue of implied surrender has been discussed in the judgment referred to above and which in no way supports the circumstance as existing in the present case.
In so far as the Rent Control laws are concerned, creation of a new landlord-tenant relationship consequent upon a transfer, is by operation of law and acceptance thereof is termed as attornment. Whether or not the tenant admits to it, is irrelevant and reference in this regard is made to the opinion expressed in paragraph 19 of the judgment rendered in the case of Kalawati Tripathi (supra). The plaintiff thus cannot claim a creation of a fresh tenancy between the parties consequent upon the transfer of property, notwithstanding the registered lease.
The next issue which arises for consideration in the present case is that where a registered lease admittedly was subsisting, whether an acceptance of the tenancy by the tenant under the transferee, in any manner determines the lease or is an implied surrender under the T.P. Act. The Full Bench judgment of this Court reported in AIR 1959 Patna 1: 1958 BLJR 659 (Digambar Narain Choudhary vs. The Commissioner of Tirhut Division) as also the judgment of the Supreme Court relied upon by Mr. Singh rendered in the case of V.Dhanapal Chettiar (supra) Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 10 have held the same view i.e. even if a lease is determined under any of the clauses appearing in section 111 of the T.P. Act, the tenant becomes liable to be evicted only if he has incurred any liability under the State Rent Control Act and no other Act. In the present case except for the oral assertion of the plaintiff regarding implied surrender of the lease relying upon some receipt stated to have been issued by the original tenant and the veracity of which is yet to be tested, the fact remains that the lease continues to subsist and has not been determined in any suit or proceedings. So long as the lease subsists the plaintiff who has stepped into the shoes of the lessor as a transferee, cannot wriggle out of the situation by relying upon collateral documents. For the sake of assumption, even for a moment if the receipt stated to have been issued by the original tenant Bhola Prasad, as regarding the adjustment of the advance is accepted on its face value, yet the same in no manner would suggest to a determination of the lease.
In so far as the case in hand is concerned, even when a specific plea of fixed tenancy under a registered lease was raised by the defendants and which was subsisting, the plea has been rejected on absolutely irrelevant and nonest grounds. I fail to understand how a suit based on plea of personal necessity can have a precedence and/or over ride a fixed tenancy under a registered lease Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 11 subsisting on the date the suit was filed and even when the lease has not been determined by a court of competent jurisdiction. The finding of the learned trial court as found in paragraphs 10 and 11 of the impugned judgment is a perversity personified. Even where the defendants have specifically raised a plea of continued tenancy under a registered lease dated 13.9.1993, the court below has not only failed to perform the duty to adjudicate upon the same as an issue rather the opinion expressed by the trial court in paragraphs 10 and 11 of the impugned judgment rejecting the plea on the anvil of the suit being instituted on grounds of personal necessity and bona-fide requirement, is an abdication of jurisdiction by the learned trial court. A suit can be instituted under section 11(1) (c) raising grounds of personal necessity together with grounds of expiry of tenancy in terms of section 11(1) (e) of Act and the moment the twin grounds are raised, they have to be considered analogous and not in isolation. In so far as the case in hand is concerned, the moment an issue of fixed tenancy was raised by the defendants, the court below was under a bounden duty to adjudicate the plea in the backdrop of uncontroverted circumstances of a subsisting registered lease-deed dated 13.9.1993. The conclusion drawn by the learned trial court that the plea cannot be entertained considering the nature of the suit which was instituted on grounds Patna High Court C.R. No.1098 of 2008 dt.09-04-2013 12 of bona-fide requirement and personal necessity, is perse illegal and contrary to the statutory provisions as also the judicial pronouncement on the issue.
For the reasons aforesaid, the judgment and order under challenge cannot be upheld and is accordingly set aside.
This civil revision application is allowed but in the circumstances of the case, there shall be no order as to costs.
This order, however, would not preclude the plaintiff to take recourse to such other remedies that may be available to him in law. As a consequence of the order the plaintiff shall be entitled to withdraw the rent deposited in the court below.
Let the lower court records in Title (Eviction) Suit No.26 of 2007 be returned to the court concerned in a sealed cover forthwith.
(Jyoti Saran, J) SKPathak/-