Gujarat High Court
Popular Estate Management Ltd vs Gunjan Paints Ltd on 20 April, 2022
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8941 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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POPULAR ESTATE MANAGEMENT LTD
Versus
GUNJAN PAINTS LTD
==============================================================================
Appearance:
PRITHU PARIMAL(9025) for the Petitioner(s) No. 1
MR JAMSHED KAVINA(11236) for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 20/04/2022
CAV JUDGMENT
1. The petitioner has preferred this petition under Article 226 & 227 of the Constitution of India for writ of certiorari, and/or a writ in the nature of certiorari, and/or and other appropriate writ/order/direction, quashing and setting aside the impugned order dated 11.11.2020 passed by learned 6th Additional Civil Judge, Ahmedabad (Rural) below Exhibit - 5 in R.C.S. No.23 of 2020 and to quash and set aside order dated 3.6.2021 passed by learned 9 th Additional District and Sessions Judge, Ahmedabad (Rural) in Misc. Civil Application No.21 of 2020.
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2. I have heard Mr. I.H. Syed, learned senior advocate assisted by Mr. Pithu Parimal, learned advocate for the petitioner and Mr. S.P. Majmudar, learned advocate on caveat for respondent.
3. The petition is heard for final disposal at the admission stage with the consent of learned advocates for the parties.
4. The facts giving rise to the present petition as could be gathered from the memo of petition and connected material are as under:-
4.1. The present dispute is arising out of office space admeasuring 2950 sq. ft. Bearing unit no.81, situated at "New York Tower", Nr. Thaltej Cross Roads, Thaltej, Ahmedabad. The respondent is the Lessor, while the Petitioner is the Lessee of the suit property.
4.2. In the year 1998, the Respondent had purchased the suit property. Thereafter, in the year 2010, the Respondent had given the office space to the Petitioner on rent, by way of a rent agreement dated 24.06.2010.
4.3. On 13.02.2012, the Respondent addressed a letter to the Petitioner whereby it has sought renewal of the rent agreement, and sought increase in rent from Rs.71,000/- to Rs.81,000/- per month. The petitioner agreed to proceed with rental of the suit premises at the increased rent of Rs.81,000/- per month.
4.4. On 19.06.2015, a second rent agreement was Page 2 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 entered into between the Petitioner and the Respondent and as part of the same, rent was increased to Rs.91,000/-
per month.
4.5. After expiry of the second rent agreement, the Petitioner and the Respondent entered into an oral agreement, wherby the Respondent agreed to allow the Petitioner to rent the suit premises/property. The Petitioner has been paying timely cheques towards rent of the same, till date. Additionally, the Petitioner has throughout paid utility bill, maintenance chages etc. associated with the suit premises/property.
4.6. Suddenly in January, 2020, the Respondent arrived at the suit premises/property along with a bunch of goons. The Respondent and the goons misbehaved with the Petitioner and hurled abuses, even in the presence of female staff members. The said persons also forcefully trespassed into the suit premises and it was only upon the intervention of occupants of neighbouring office units that the said persons left the building.
4.7. Being aggrieved by the same, the Petitioner preferred Regular Civil Suit No.23 of 2020 before the Ld. Principal Civil Judge, Ahmedabad (Rural), wherein inter alia the Petitioner has prayed for peaceful possession of the suit property. The Petitioner has also moved an application below exh. 5, seeking injunction against the Respondent from evicting the Petitioner from the suit property.
Page 3 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 4.8. Vide order dated 11.11.2020, the Ld. 6 th Additional Sr. Civil Judge, Ahmedabad (Rural) was pleased to reject the application for injunction of the Petitioner, below exh. 5. Being aggrieved by the same, the Petitioner preferred Misc. Civil Application No.21 of 2020 before the Ld. Additional District & Sessions Judge, Ahmedabad (Rural).
4.9. On the same day, i.e. 11.05.2021, being aggrieved by the same the Petitioner moved another application below exh. 9 before the Ld. Additional District & Sessions Judge, Ahmedabad (Rural), seeking protection against illegal trespass by the Respondent herein. On 11.05.2021, the Petitioner also preferred a representation before the Commissioner of Police, Ahmedabad seeking protection against the illegal trespass by the Respondent.
4.10. On 03.06.2021, vide the impugned order, the Ld. 9th Additional District & Sessions Judge, Ahmedabad (Rural) at Mirzapur was pleased to dismiss Misc. Civil Application No.21 of 2020. Hence, being aggrieved and dissatisfied by the same, the Petitioner has preferred the instant Special Civil Application under Article 226 & 227 of the Constitution of India.
5. Learned advocates for the parties have made elaborate oral submissions and have submitted the gist of the arguments in form of written submissions.
6. The gist of written submissions on behlaf of the petitioner is as under:-
"1. The Petitioner has preferred the present Petition Page 4 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 seeking quashing & setting aside of order dated 11.11.2021 passed below Exh. 5 in R.C.S. No.23 of 2020, by the Ld. 6th Addl. Sr. Civil Judge, Ahmedabad (Rural) as well as seeking quashing & setting aside of order dated 03.06.2021, passed by the Ld. 9 th Addl. District & Session Judge, Ahmedabad (Rural) at Mirzapur in MCA No.21 of 202, further, injuncting the Respondent herein from evicting the Petitioner from the suit Premises. The moot question for adjudication is whether the Petitioner who is in lawful possession of the property and has been paying the last agreed rent regularly is required to be protected against the forceful dispossession by the onwer of the property i.e the Respondent herein.
2. Brief facts leading of the Petition can be summarized as under-
a. The Respondent purchased the suit property being office space admeasuring 2950 sq. ft. Bearing unit no. 81, situated at "New York Tower", Nr. Thaltej Crossroads, Thaltej, Ahmedabad.
b. Vide a rent agreement dated 24.06.2010, the Respondent had given the suit property to the Petitioner on rent. As per the condition no.04 of the agreement, the Petitioner deposited Rs.1.42 lacs as security deposit, which was to be refunded by the Respondent at the time of expiry of the tenancy.
c. On 13.02.2012, the Respondent adressed a letter to the Petitioner whereby it sought renewal of the Rent Agreement and sought increase in rent from Rs.71,000/- to Page 5 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 Rs.81,000/- p.m. The Petitioner agreed to renew the Rent Agreement at increased rent of Rs.81,000/- p.m. d. On 19.06.2015, another rent agreement was entered into between the Petitioner and the Respondent. This time, rent was increased to Rs.91,000/- p.m. at the request of the Respondent. Here too, condition no.04 stipulates that the security deposit of Rs.1.42 lacs is to be returned at the time of expiry of the tenancy.
e. After alleged expiry of the said Rent Agreement, at the request of the Respondent, the parties decided to continue with rental of the suit property/premises. Accordingly, the Petitioner has been paying timely cheques towards rent of the same, until September, 2020. Additionally, the Petitioner has paid utility bills, maintenance charges etc. Associated with the suit premises/property, throughout.
f. In January, 2020, the Respondent arrived at the suit premises/property along with some goons. The said persons also forcefully trespassed into the suit premises and tried to forcibly disposess the Petitioner.
g. Immediately thereafter, the Petitioner preferred RCS No.23 of 2020 before the Ld. Principal Civil Judge, Ahmedabad (Rural), wherein inter alia the Petitioner has prayed for protection of peaceful possesion of the suit property. The Petitioner has also preferred an application below exh.5 seeking injunction against forcible dispossession. This application below exh. 5 forms the subject matter of the present Petition.Page 6 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022
C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 h. On 16.01.2020, the Court Commissioner has drawn a report where the Petitioner has been shown to be in possession.
i. In another bid to forcefully dispossess the Petitioner, the Respondent got registered an FIR bearing no.11191020201509 with Vastrapur Police Station, Ahmedabad alleging that the directors of the Petitioner continue to occupy the suit premises illegally and have committed offence u/s 406, 420, etc. of the IPC. Vide order dated 09.12.2020 passed in ScrA No.7923 of 2020, this Hon'ble Court was pleased to issue notice and pass interim orders in a quashing petition preferred by the directors of the Petitioner company.
j. Meanwhile, vide the first impugned order dated 11.11.2020, the Ld. Addl. Sr. Civil Judge, Ahmedabad was pleased to dismiss the application of the Petitioner below Exh. 5. Being aggrieved by the same, the Petitioner had preferred MCA No.21 of 2020 before the Ld. 9 th Addl. District & Sessions Judge, Ahmedabad (Rural).
k. In a third attempt to forcefully dispossess the Petitioner, the Respondent preferred an application before the SDM (West), Ahmedabad u/s 145 of the CrPC. The Petitioner received a notice from the said office and preferred CrRA No.5 of 2021 before this Hon'ble Court. Vide order dated 11.02.2021, this Hon'ble Court was pleased to stay the proceedings initiated u/s 145 of the CrPC.Page 7 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022
C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 l. In a fourth attempt to forcefully dispossess the Petitioner, on 11.06.2021 the Respondent along with the PSI of Vastrapur Police Station and a number of policemen forcibly trespassed into the suit premises in blantant disregard of the interim order of this Hon'ble Court dated 11.02.2021. The Respondent as well as the police personnel barged in and started throwing office belongings outside. On the same day, the Petitioner preferred another application below exh. 9 before the Ld. District Judge seeking interim protection. On 12.05.2021, the Ld. District Judge, passed below exh. 9 and granted interim protection to the Petitioner.
m. In a fifth attempt to forcefully dispossess the Petitioner, the Respondent yet again preferred an application before Vastrapur Police Station, seeking police bandobast to take forceful possession. The relative of one director of the Petitioner was called to the Police Station and was informed by the Police to vacate the premises by 26.06.2021.
n. Vide order dated 03.06.2021, the Ld. District Judge was pleased to dismiss MCA No.21 of 2020. Hence, the Petitioner has prefered the present Special Civil Application.
3. The petitioner is placing reliance upon Section 116 of the Transfer of Property Act, 1882, whereby it is unequivocally and categorically provided that in an instance where an agreement of lease has come to an end because of efflux of time and yet the lessor continues to accept payment of rent, the rent agreement shall be Page 8 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 deemed to have been extended. Section 116 of the Transfer of Property Act is reproduced hereunder for ready reference-
"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."
4. While passing the impugned orders, the Ld. 6th Add. Sr. Civil Judge, Ahmedabad and the Ld. 9 th Addl. District & Sessions Judge, Ahmedabad have erred in holding that the rent agreement entered into between the parties had expired on 30.06.2016 and further that acceptance of rent after expiry of the term of the rent agreement cannot be construed to be an expression of consent of the Respondent to renew or extend the term of the agreement, and cannot have the effect of holding over as prescribed u/s 116 of the Transfer of Property Act.
5. While passing the impugned orders, the Ld. Courts, more particularly the Ld. District Judge, have primarly relied upon the following judgments-
a. Bhawanji Lakhamshi and Ors. v. Himmatlal Jamnadas Dani and Ors. [(1972) 1 SCC 388];
Page 9 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 b. Shanti Prasad Devi and Ors. v. Shankar Mahto and Ors. [(2005) 5 SCC 543].
However, the Ld. District Judge has erred in interpreting these judgments and have wrongly applied the ratio therein to the present case. It is submitted that the ratio laid down therein is with respect to inapplicability of Section 116 of the Transfer of Property Act to cases here rent control legislation is in force. In the present case however, rent control regulations do not apply as the suit property has been let after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, thereby falling into the exception carved u/s 4(1A) of the Act. Section 4 of the Act is reproduced hereunder for ready reference-
"4.(1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority.
[(1A) This Act shall not apply to -
(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001 (hereinafter referred to as "the amending Act");
(b) any existing premises which is self-occupied by the owener or vacant on or after the commencement of the amending Act, and is let after such commencement;
for a period of ten years from the date of the Page 10 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 commencement of the amending Act.
Explanation.-For the purposes of this section, "existing premises" means any premises which exists on the date of the commencement of the amending Act.] While passing judgments in the case of Bhawanji Lakhamshi and Ors. (supra) & Shanti Prasad Devi and Ors. (Supra), the Hon'ble Supreme Court has relied upon and followed its judgment in the case of Ganga Dutt Murarka v. Kartik Chandra Das and Ors. [(1991) 3 SCR 813], wherein the Hon'ble Supreme Court has held that Section 116 of the Transfer of Property Act would not apply to cases where rent control legislation is in place. It is reiterated that in the present case, rent control law is not applicable. The releant extract of the judgment is as under:-
"5. Under the Calcutta Rent Ordinance 1946, and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act, 1950, in the expression "tenant" was included any person who continued in possession after the termination of his tenancy. Section 12 of the West Bengal Premises Rent Control Act, 1950, expressly protects a tenant whose lease has expired. By the Rent Restriction Statutes at the material time, statutory immunity was granted to the appellant against eiction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory Page 11 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 prohibition imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee continuing in possession". Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancyis determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise, be contitioned"
It is submitted that the aforesaid judgments have been distinguished by the Hon'ble Supreme Court in cases where rent control law is inapplicable, in Bhuneshwar Prasad and Anr. v. United Commercial Bank and Ors. [(2007) 7 SCC 232]. In paragrap 7 of the said judgment, the Hon'ble Supreme Court has held as under:-
Page 12 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 "7. Section 116 of the Transfer of Property Act would not be attracted merely on acceptance of rent. Reliance is placed upon a decision of Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbahi Hirjibhoy Warden & Anr.
[1949 Federal Court Reports 262]. We agree that to bring a new tenancy into existence within the meaning of Section 116, there should be an agreement as the section contemplates that on one side, there should be an offer of taking a fresh demise evidenced by lessee's continuing occupation of the property after the expiry of the lease and on the other side, there must be a definite assent to this continuance of possession by the lessor/landlord and that such an assent of the landlord cannot be assumed in cases of tenancies to whcih Rent Restriction Acts apply on account of the immunity from eviction which a tenant enjoys even after the expiry of lease. In such cases, the landlord cannot eject him except on specified grounds mentioned in the Rent Restriction Acts and thus the acceptance of rent by the landlord from a statutory tenant, whose lease has already expired, would not be taken as evidence of new agreement of tenancy and it would not be open to such a tenant to urge that by acceptance of rent, a fresh tenancy was created. We do not expect a lessor not to accept the rent when, in view of the protection granted by the Rent Restriction laws, without existence of one or the other ground, he is precluded from seeking eviction of the lessee and in such a case, there would be no question of creation of tenancy from month to month. Under these circumstances, mere acceptance of amount equivalent to rent or the standard rent would not attract Section 116. Assent to lessee continuing in possession would be absent in such cases. However, an Page 13 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 agreement creating fresh tenancy within the meaningof Section 116 can be implied from the conduct of the parties. In Ganga Dutt Murarka v. Kartik Chandra Das and Ors. [(1961) 3 SCR 813], while affirming the dictum laid down in Khushroo's case (supra), it was held that apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. In Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors. [1972 (1) SCC 388], again the question that came up for consideration was as to whether a fresh tenancy was created or not by acceptance of rent by the lessor after the termination of the tenancy by efflux of time. This Court declined the prayer to reconsider Ganga Dutt Murarka's case (supra) and held that acceptance by landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent or amounts which was fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116 of the Transfer of Property Act. The present is not a case of acceptance of amounts equivalent to rent or amounts fixed as standard rent but acceptance of increased rent. It was also obsered that (SCC p. 394, para 13) "We do not say that the operation of Section 116 is always excluded whatever be the circumstances under which the tenant pays the rent and the landlord accepts it."
Page 14 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 The whole basis of Section 116 is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and, therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession. It would be absent in cases, therefore, it is for the tenant where it is said that the landlord accepted the rent not as a statutory tenant but only as a legal tenant indicating his assent to tenant's continuing possession, to establish it."
6. Therefore, the impugned orders have been passed upon misapplication of the law, since rent control law is not applicable to the present case. Therefore, Section 116 of the Transfer of Property Act is applicable to the present case and therefore the impugned orders are required to be quashed and set aside. It is further submitted tht the Respondent has not followed the due process of law and therefore protection in termsof an injunction is required to be granted in faour of the Petitioner herein. Thus, the present Petition is required to be alloed by this Hon'ble Court."
7. Gist of written submissions on behlaf of the respondent is as under:-
1. The Respondent-original Defendant is owner of Unit no 81 (2950 Sq.Meters) situated at 8th Floor of New York Tower, FP no 69, survey no 22 TP scheme no 2, Thalte), Ahmedabad.
2. The leave and license Agreement entered into by the respondent with the petitioner was Page 15 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 for a specific period only and after that no agreement has been renewed. Due to this reason the petitioners herein are trespassers of the property in question as the rent agreement was concluded on 30.06.2016 and that despite the respondent's repeated requests to vacate, the petitioner is refusing to vacate the said premises.
The petitioner has no locus standi to occupy the suit property.
3. The respondent has never expressed any intention to renew the said agreement with the petitioner. Respondent has in fact put up a banner (ANNEX R-ID) at the office of New York Tower A as well as the suit property, so that their intention of non-renewal of lease period is conveyed to the petitioner. Additionally Respondent also sent a letter on 04.07.2016 (ANNEX R-IID to convey intention about non- renewal of licence/lease period and to get suit property vacated but appellant paid no heed to this request. There was never any oral agreement either between the parties.
4. That the learned first appellate court has correctly found that, as held by the Hon'ble Apex Court in Bhawanji Lakhamshi & Ors vs Himatial Jamnadas Dani and Ors 1972 (1) SCC 388 (paras 9,10,11,13), even if agreement entered into between parties is considered as rent or lease agreement, mere acceptance of amount equivalent to monthly rent cannot by itself prove that the Page 16 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 lease period was extended by the Respondent. It is also correctly held by the learned court below that, as held by the Apex Court in the case of Shanti Prasad Devi and Anr vs Shankar Mahto and Ors. (2005 (5) SCC 543) (paras. 17,18,19) that mere acceptance of rent after expiry of lease cannot be said to be conduct signifying assent to the continuance of the lessee even after expiry of lease period and the same cannot be termed as tenancy by holding over.
5. That the learned first appellate court has correctly found that, as held by the Hon'ble Apex Court in Maria Margarida Sequeria Fernandes and Ors vs Erasmo Jack De Sequeira @ead) Through LRS. (2012 (5) SCC 370) (paras 67,70,79,80, 97(4)) that issuance of legal nouce is not required when tenancy determined tn any one of the way prescribed under section 111 of the Transfer of Property Act Since here tenancy was determined by efflux of tume, there was no subsisting renVlease agreement between the parties. Additionally, once court of competent yunsdiction has adjudicated matics between parties, due process can be said to be followed and 1t 1s permussible that this is done when landlord is contesting the legal proceedings initiated by the tenant/lessee seeking protection of possession by way of injunction as is the exact case here.
6. That the leamed first appellate court has correctly found that, the Hon'ble Apex Court in Page 17 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 Firm Sardari Lal Vishwanath & Ors vs Pritam Singh (1978 (3) SCC 1) (para 18) has rejected the argument that issuance of a fresh notice under Section 106 of Transfer of Property Act is required even when the lease has come to an end by efflux of time.
7. FIR dated 28.10.2020 (ANNEX R-IV) was also registered by respondent against petitioner herein for offences under 406,420,468,506(2),294(b),120B of IPC, 1860.
8. That the petitioner has also addressed letter to IndusInd Bank on 20.07.2020 (ANNEXI of Additional Affidavit on behalf of Respondent No.1) wherein they have stated that they have long term lease. This is further evidence of the malafides of the petitioner writ large and how the petitioner intends to grab the suit property from the rightful true owners of the property, i.e. the respondent herein.
9. It is trite law that Licence is deemed to be revoked, when it has been granted for a limited period, on expiry of such period.
10. It is submitted that when tenancy is determined by the efflux of time, then there cannot be tenancy by holding over as per section 116 of Transfer of Property Act.
11. That protection of the Hon'ble Court by way Page 18 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 of injunction can only be granted or extended to a person who is having valid subsisting rent agreement lease agreement or licence agreement in his favour as held by the Hon'ble Apex Court in A. Shanmugam Vs Ariya Kshatriya Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012 (6) SCC 430) (para 43.8). The petitioner herein has no such valid and subsisting agreement and therefore the impugned orders are just and proper and deserve no interference from this Hon'ble Court.
12. That due process of law has been followed. The both courts of competent jurisdiction have heard both the parties and come to the conclusion that no case is made out to grant interim injunction to the petitioner and therefore too, no interference of this Hon'ble Court is warranted under Article 226 and Article 227 of the Constitution of India. Additionally, the respondent herein has never carried out any illegal activity to dispossess the petitioner and the respondent has always followed the due process of law. °
13. That no interference of this Hon'ble Court is warranted under the extraordinary powers conferred by Article 226 and 227 of the Constitution, especially since both the leamed courts below have passed well-reasoned and just orders and there are concurrent findings aguinst the present petitioner wherein it is held that the Page 19 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 petitioner facie case, balance of convenience is not in his favour and no irreparable loss or injury will be caused to the petitioner if injunction prayed for is not granted. Further even the Hon'ble Apex Court has laid down the specific instances in which interference of this Hon'ble Court is warranted in the case of Surya Dev Rai vs Kam Chander Rai and Ors (2003 (6) SCC 675) (paras 10, 24, 26,32, 38 and 39) and that no such case has been made out by the petitioners herein for any interference by this Hon'ble Court.
14. Further in the case of Ranjeet Singh vs Ravi Prakash (2004 (3) SCC 682) (para 4) is held that for an order to be amenable to correction in certiorari jurisdiction, the error committed by the court on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident and the High Court does not have to reappreciate or revaluate the entire evidence under Articles 226 and 227 of the Constitution. Here the learned courts below have made no such error and have fact passed well-reasoned orders and therefore no interference of this Hon'ble Court is warranted in the present case.
15. That the learned courts below have correctly held that agreement between the parties expired on 30.06.2016 and that it would now be unjust if injunction is granted to the petitioner herein despite the fact that tenancy/lease period is over Page 20 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 and the fact that the respondent has conveyed through various ways to the petitioner that he is not willing for continuance of petitioner on suit property.
16. That even this Hon'ble Court has in the case of Pankajbhai Murabhai Dhoria vs Shantilal Vallabhdas JogiaDead and Ors (Second Appeal No 171 of 2013, order dated 11.02.2014) (paras 11,12,13) that due process of law is satisfied when the matter has been adjudicated between parties by a court of competent jurisdiction and that then the true owner can recover possession of premises and additionally mesne profits can also be awarded to the true owner along with costs. Here in this case to, the petitioner is a mere trespasser and is no longer entitled to occupy suit property and the same should be directed to be handed back to the respondent herein as true owner of the property, along with mesne profits and costs.
8. I have considered the written arguments submitted by the learned advocate for the parties. I have also perused the order dated 11.11.2020 passed below Exhibit-5 by the learned trial Judge and impugned judgment of the lower appellate Court.
9. It emerges from the impugned judgment of the lower appellate Court that the agreement dated 19.06.2015 entered into between the appellant and the respondent is considered as lease agreement for the purpose of deciding Page 21 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 the appeal with liberty to the trial Court to take a view contrary to this while deciding the main civil suit being RCS No.23/2020. It is thus eminently clear that the impugned judgment of the lower appellate Court has proceed on the basis that the agreement dated 19.06.2015 between the appellant and respondent is a lease agreement and not a rent agreement of the landlord. Provision of Transfer of Property Act (T.P. Act for short) and the judgments of the Supreme Court and this Court are considered by the lower appellate Court as if the agreement dated 19.06.2015 is the lease agreement.
10. It is an undisputed fact that by an agreement dated 24.06.2010 the respondent had given the subject property to the petitioner on rent and security deposite of Rs.1,42,000/- was accepted. This security deposit was refunded to the appellant at the time of expiry of tenancy. It is also undisputed fact that on 13.02.2012, the respondent has addressed a letter to the petitioner and sought renewal of the agreement with an increase in the rent from Rs.71,000/- to Rs.81,000/-. Thereafter, another agreement dated 19.06.2015 was executed between the parties and the rent came to be increased to Rs.91,000/- from Rs.81,000/-. It is an admitted fact that the agreement dated 19.06.2015 expired on 30.06.2016 and thereafter no fresh agreement is entered into between the parties. However, the petitioner has irregularly paid rent of the premises to the respondent as also other charges such as utility bill, maintenance charges etc.
11. The lower appellate Court has dismissed the appeal of the petitioner essentially on the following count:-
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(i) Relying upon the provisions of Section 111 of the T.P. Act of the judgment of the Supreme Court in the case of Ashanmugam (supra), the learned lower appellate Judge has held that since there is no extension/fresh agreement after expiry of agreement dated 19.06.2015, there is no valid subsisting rent/lease agreement between the parties.
(ii) The learned lower appellate Court has also relying upon the judgment of the Supreme Court in the case of Bhawanji Lakhamshi (supra) and letter dated 04.07.2016 written by the respondent to the appellant has held that the appellant was asked to vacate the premises and therefore, the appellant cannot be said to be a tenant by holding over as provided under Section 116 of the T.P. Act.
(iii) It is eminently clear that the learned trial Judge has on the basis of judgment of Supreme Court in the case of Margrida Sequeria (supra) that the due process of law is satisfied the moment and the parties are adjudicated by the competent Court and i.e. held by the Supreme Court in the case of Firm Sardari (Supra) that no fresh mandates is required under Section 116 of the T.P. Act even the lease had come to an end by afflux of time.
(iv) The learned trial Judge has held that it is eminently clear that the lower appellate Court has held that since the lease has expired by afflux of time and that there is no fresh agreement after expiry of agreement dated 30.06.2016 and since the Court competent jurisdiction had adjudicated the dispute, the requirement of due process of law is specified and therefore it cannot be said that the Page 23 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 petitioner has a prima facie case in his favour nor does balance of convenience is in his favour and has therefore required the appeal confirming the order passed by the trial Court below Exhibit-4.
12. It is manifestly clear that the lower appellate Judge has not discussed the arguments convassed on the either side, the learned lower appellate Judge has merely reproduced the relevant sections of the T.P. Act and judgments of the Supreme Court as noted hereinabove and has straightway recorded a finding that there is adjudication of dispute between the parties by the competent Court without specifying the competent Court which has decided the issue between the parties and has held that the petitioner has failed to establishe that balance of convenience, prima facie case, and irreparable injury are in his favour. We are left to assume that the finding recorded by the trial Court while rejecting Exhibit- 5 application is considered as adjudication of the dispute between the petitioner and the respondent by the competent Court. In my considered view the approach adopted by the learned trial Judge to decide an appeal under Order 43(1) of the Code cannot be countenanced.
13. It must be emphasized that the judgments of superior Courts are based on the facts of the case. Such judgments of the superior Courts cannot and should not be applied in a truncated manner by selectivity picking up certain observation out of in isolation.
14. The Court below has totally failed to appreciate and consider that the decision of the Supreme Court in the Page 24 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 case of Bhawanji Lakhamshi (supra) have had reached the Supreme Court after fulfledged trial of the suit where the parties had adduced oral and documentary evidence. The Supreme Court has after considering the evidence which was adduced by the parties during the course of the trial of the suit has held that the act of held over after the expiration of the term does not creat of tenancy of any kind and mere acceptance of amount equivalent to rent by the land from the tenant in possession after the lease has been determined cannot be regarded as an evidence of a new agreement of tenancy.
15. In the case of Firm Sardari Lal Vishwanath (supra), the question posed for consideration before the Supreme Court was whether a statutory tenant is entitled to notice as envisaged by Section 106 of the T.P. Act before an action in ijectment is commenced against him under any of the enabling provisions of the relevant Rent Restriction Act. The lower appellate Court has conveniently extracted some observations made by the Supreme Court in paragraph No.18 of the judgment to held that landlord is not required to serve legal notice when the lease has already been determined. The learned lower Judge ought to have apprecited and considered observations of the Supreme Court made in paragraph No.18 as a whole in holistic manner. The paragraph No.18 reads as under:-
"18. Having examined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice Page 25 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immoveable property determines in any one of the modes prescribed under Section 111, the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless, te contract of lease has expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end, under the protection of the Rent Restriction Act. If contract once came to an end there was no question of terminating the contract over again by a fresh notice. Therefore, both on principle and authority the con tention of Mr. Mahajan cannot be accepted."
16. It is thus vividly clear from the aforesaid observations of the Supreme Court that the right of re entry of the landlord is further restricted and fettered by the provisions of Rent Restrictions Act. Nonetheless, the contract of lease has expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act untill the lessee losses protection.
17. It needs to be reiterated that the learned appellate Page 26 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 Court has proceeded on the pleadings that the agreement dated 19.06.2015 between the petitioner and respondent is a lease agreement and not a rent agreement and the question whether the agreement should be considered as a lease agreement or rent agreement as required upon to be decided at the time of the trial of the suit.
18. Here in the case on hand, the Courts below have completely ignored the fact that the respondent has accepted rent till September, 2020 even after expiry of agreement dated 19.06.2015 which expired on 30.06.2016 without any demour, protest or objection. It is thus very clear that whether the petitioner can be set to be a tenant by holding over as contemplated under Section 116 of the T.P. Act is important issue which is involved in suit instituted by the petitioner.
19. In case of Maria Margarida Sequeria Fernandes (supra), the parties were sister and brother. The appellant had become an owner on the basis of the order passed in Inventory Proceeding No.1075/935 and the said order was passed in presence of the respondents. Hence, there was an adjudication of dispute between the parties by a competent Court. The Supreme Court, therefore, held as under:-
"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."Page 27 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022
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20. The learned trial Judge seems to have been swayed by letter dated 04.07.2016 written by the respondent to the petitioner conveying the petitioner to vacate the suit premises. The agreement between he parties had expired on 30.06.2016, and thereafter in a short time the respondent seems to have written letter dated 04.07.2016 to the petitioner calling upon him to vacate the premises. However, thereafter for the considerable long time i.e. till September, 2020 the respondent has accepted rent from the petitioner without any demour, protest or objection. This conduct of the respondent is required to be examined to determine the intention of the parties as regards the subsitance of their relationship either as landlord and tenant or as a lesser and lessee at the time of trial of the suit on the basis of the evidence, poral and documentary that may be adduced by the parties.
21. If the view taken by the Courts below is approved as a correct proposition of law, then it would create chaos in the society and a landlord would get a licence to entered into rented or leased premises to throw tenant/lessee of premises out locks stock and barrel, leaving no opportunity to the tenant or lessee to seek legal protection if any available to him.
22. It is an unfortunate that the learned trial Judge has applied the ratio of decision of the Supreme Court in a very cavalier manner and has picked up observation therefrom out of context to record a finding that when a dispute between the parties is determined by a competent Civil Court then the requirement of due process of law is Page 28 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 fulfilled and thereafter an injunction against the landlord restraining him from evicting to tenant without resorting to due process of law cannot be granted such a proposition of law is prepostrust and in fact is not the proposition of law which has been laid down by the Supreme Court in its decisions relied upon the learned appellate Court. I am, therefore, of the considered view that the order below Exhibit-5 and the judgment of the lower appellate Court cannot sustained and considering the conduct of the parties after expiration of agreement dated 19.06.2015, I am of the view that the petitioner has successfully established a prima facie case and balance of convenience in his favour and that if injunction is not granted, irreparable injury would be caused to him. The petitioner is, therefor, entitled to the injunction as prayed for in Exhibit-5 application in RCS No.23/2020.
23. For the foregoing reasons, the petition succeeds and is hereby allowed. The order dated 11.11.2020 passed below Exhibit-5 in RCS No.23/2020 passed by the learned 6th Additional Civil Judge, Ahmedabad (Rural) and judgment dated 03.06.2021 passed by the learned 9 th Additional District and Sessions Judge, Ahmedabad (Rural) in Misc. Civil Application No.21 of 2020 are hereby quashed and set aside and interim injunction as prayed for in below Exhibit-5 application in RCS No.23/2020 is hereby granted till disposal of the suit.
24. Liberty is reserved in favour of the parties to move the trial Court for expeditious disposal of the suit.
Sd/-
(A.G.URAIZEE, J) Page 29 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022 C/SCA/8941/2021 CAV JUDGMENT DATED: 20/04/2022 After the aforesaid order was pronounced, Mr. Jamshed Kavina, learned advocate for Mr. S.P. Majmudar, learned advocate for the respondent urges that the implementation of this judgment may be stayed for two weeks to enable the respondent to approach the Supreme Court.
In view of the orders recorded in this order, the request is declined.
Sd/-
(A.G.URAIZEE, J) Manoj Page 30 of 30 Downloaded on : Wed Apr 20 21:31:12 IST 2022