Andhra HC (Pre-Telangana)
Chilukoti Srinivasa Rao vs Adidam Mohan Rao on 27 November, 2000
Equivalent citations: 2001(1)ALD128, 2001(1)ALT194
Author: Vaman Rao
Bench: Vaman Rao
ORDER
1. This second 1999 in A.S.Nos.4 and 79 of 1999 on the file of the II Addl. Senior Civil Judge, Vijayawada under which the plaintiff's suit OS No.1310 of 1996 against the defendant-landlord restraining him from evicting the tenant otherwise than due course of law has been decreed and similarly OS No.88 of 1997 filed by the plaintiff - landlord for evicting the defendant - tenant from the suit schedule premises has also been decreed along with the relief of damages for use and occupation of the suit premises. This second appeal is filed by the defendant -tenant in OS No.88 of 1997 against the dismissal of the appeal and decreeing the suit for eviction against him.
2. For the convenience of the reference, the parties will be referred to as the tenant and landlord respectively. The appellant shall be referred to as the tenant and the respondent as the landlord.
3. The facts leading to this appeal may be stated as follows:
The tenant obtained the suit premises on lease for running a printing press in the suit premises. The tenancy was agreed to be month-to-month corresponding to calendar month with a monthly rent of Rs.2500/- per month. The tenant failed to pay rents from October, 1996 onwards. The landlord got issued notice under Section 106 of the Transfer of Property Act (hereinafter referred to as 'the Act') terminating the tenancy by the end of December, 1996 and demanding to deliver vacant possession with effect from 1-1-1997. It is further claimed that as after the termination of tenancy, the tenant's possession was that of a trespasser, and as such damages at the rate of Rs.5000/- were also claimed. As the tenant failed to vacate the premises the suit for eviction and claiming arrears of rent and damages has been filed. As stated above, the tenant himself filed the other suit for injunction restraining the landlord from evicting him otherwise than in due course of law. The Trial Court framed issues in both the suits, more particularly in OS No.88 of 1997 was for evicting the tenant, a specific issue whether the quit notice dated 29-11-1996 issued by the plaintiff was valid besides the other issues relating to arrears of rent and claim of damages and entitlement of the plaintiff for evicting the plaintiff was framed. The defendant-tenant in the eviction suit, in his written statement admitted that he obtained the premises on a monthly rent but the quantum of rent was disputed. It is stated that he obtained the premises for residential and non-residential purposes. It was also stated that at the time of induction the tenant paid Rs. 30,000/- as advance to the landlord. The terms of tenancy were stated to be oral. The tenant has been paying the rents regularly but the landlord was not issuing receipts. In November, 1996, the landlord demanded the tenant to enhance the rent up to Rs.3000/- per month for which the tenant refused. Thereupon, the landlord bore grudge and refused to receive the rents sent by money orders. The landlord resorted to steps for forcible eviction of the tenant. On behalf of the landlord, PWs.1 and 2 have been examined; Ex.A1 and A3 have been marked. On behalf of the defendant DWs.1 to 3 have been examined including the defendant -tenant as DW 1 and Exs.B1 to B3 have been marked. On this evidence, the learned II Additional Junior Civil Judge, Vijayawada held that the notice terminating the tenancy issued by the landlord was valid and the tenancy was validly terminated and accordingly decreed the suit of the landlord for possession and on the question of rent, the trial Judge held that the monthly rent agreed to between the parties was Rs.1200/-per month as stated by the tenant and in regard to damages also he held that the plaintiff is entitled to damages at the rate of Rs.1200/- per month. This, common judgment was challenged by both the landlord and the tenant. The tenant filed AS No.79 of 1999 and the landlord filed AS No.4 of 1999. The learned Senior Civil Judge framed points for consideration, which included whether the tenancy was fixed for month to month and whether the notice issued under Section 106 of the Act was valid. He also made it a point for consideration as to whether the rent was Rs.1200/- or Rs.2500/- p.m. and whether the tenant was entitled to permanent injunction and whether the landlord was entitled to seek eviction. The learned senior civil Judge held that the tenancy was for month to month and the notice under Section 106 of the Act was valid and the tenancy was validly terminated and the landlord was entitled to seek eviction of the tenant. He also held that monthly rent was Rs.1200/-per month and the tenant was entitled for injunction.
4. This second appeal has been preferred by the tenant. The findings of the learned senior civil Judge that the tenancy was from month to month and that the quit notice Ex.A1 was valid and that the tenancy was validly terminated are now challenged in this appeal.
5. The question for consideration is whether the finding that tenancy was month to month and quit notice was valid erroneous in law raising a substantial question of law.
6. It may be pointed out that in the plaint in OS No.88 of 1997 filed by the landlord there is a specific plea in paragraph 3 that the tenancy was for month to month and corresponds to calendar month and that the rent for each calendar month was payable at the end of the month. It is significant to note that in the written statement, there is no specific denial of this averment in the plaint. In fact, it is stated in para-5 of the written statement that the monthly rent agreed was Rs.1000/- per month under an oral agreement of tenancy between the plaintiff and defendant. Thus, the fact that the tenancy was month to month must be deemed to be an admitted fact. The learned appellant, however, points out to a statement made by the landlord as PW1 that there was no fixed period of tenancy. Even this statement does not alter the position that the fact that the tenancy was month to month shall be deemed to have been admitted by the defendant.
7. Before proceeding further in this appeal, it may be mentioned that during the pendency of the second appeal on behalf of the appellant CMP No.7183 of 2000 has been filed seeking amendment of the written statement to incorporate a plea that the quit notice was not legal because the tenancy sought to be terminated in a tenancy for manufacturing purpose inasmuch as there is a printing press in the premises. It is also sought to be projected on record that the press was not a treadle press but it was a cylinder press and that the tenant was carrying out book binding activity and thus, the defendant was carrying on manufacturing activity. This petition is opposed. At any rate, this amendment sought at this belated state does not deserve to be allowed. The CMP is accordingly dismissed. The appellant also filed CMP No.7182 of 2000 to receive certificate of registration of firm dated 15-5-1982, to show that printing press was running in the premises as additional evidence. For the same reason given above, this CMP is also dismissed. Further this case can be decided on the material on record even on the ground that the tenancy was for manufacturing purpose. It may, however, be stated that the fact that the lease was granted to the tenant for the purpose of carrying on printing press is admitted even by the plaintiff-landlord. However, the defendant-tenant's plea is that the premises were taken partly for residential purpose and partly for carrying on business of printing press.
8. The contention of the learned Counsel for the appellant, Sri K.V. Satyanaryana is that notwithstanding an agreement or admission that the tenancy was month to month, in view of Section 106 of the Act inasmuch as the lease was for manufacturing purpose, it shall be deemed to be a lease from year to year terminable on the part of either lessor or lessee by six months notice expiring with the end of a year of the tenancy.
Section 106 of the Transfer of Property Act reads as under:
"Section 106: Duration of certain leases in absence of written contract or local usage :--In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice expiring with the end of a month of the tenancy"
9. Section 107 of the Act contemplates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. It provides that all other leases of immovable property may be made either by a registered or by oral agreement accompanied by delivery of possession. Section 107 further mandates that where a lease of immovable property is made by a registered instrument such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
10. In this case, it is not the case of the appellant that there was any agreement between the parties that the suit premises were leased out for any term exceeding one year or reserving yearly rent. Even if there is such agreement, in view of the provisions of Section 107 of the Act, such an agreement unless it is registered cannot be looked into. The contention of the learned Counsel for the appellant is that the mere fact that the tease is admitted to be for running printing press amounts an admission that it was for carrying on a manufacturing activity, and the presumption as contemplated under Section 106 would arise and the lease being for manufacturing purpose shall be presumed to be lease from year to year terminable by six months' notice expiring with the end of a year of the tenancy. The contention is that inasmuch as the quit notice Ex.A-1 was only a notice of 15 days ending with the month of tenancy, it was not in conformity with Section 106 of the Act and as such invalid and tenant - appellant's tenancy shall not be deemed to have been validly terminated by the said notice. There is some fallacy in the argument. It is pertinent to point that presumption under Section 106 of the Act shall be raised where there was no agreement to the contrary. In this case, it is the specific plea of the plaintiff landlord as stated in paragraph-3 of the plaint that the tenancy was agreed to be month to month between the parties. As observed above this has not been denied in the written statement. In fact the trial and proceedings in the first appeal were conducted on the basis that it was a month-to-month tenancy. Even in this appeal, the contention of the appellant is not that there was an agreement between the parties to provide lease for a term exceeding one year, reserving yearly rent, or that it was from year to year. The contention appears to be that notwithstanding the absence of such an agreement, on the strength of presumption under Section 106 of the Act itself, the Court has to proceed on the assumption that the lease being for manufacturing purpose, it was from year to year terminable with six months' notice. This contention ignores the fact that this presumption could be raised subject to 'contract to the contrary'. In this case as stated above, admittedly it was agreed between the parties that the tenancy would be from month to month. Section 106 does not prohibit the parties from contracting that notwithstanding the tenancy being for manufacturing purpose it would be from month to month.
11. The learned Counsel for the appellant, however, contend that even if such an agreement is permissible, Section 106 contemplates that the agreement to the contrary must be an agreement in writing. Mr. K.V. Satyanarayana, learned Counsel for the appellant refers to the marginal note of Section 106 and contends that such an agreement could only be in writing. It is true that the marginal note mentions of written contract, which is in the following words "duration of certain leases in the absence of written contract or local usage". This may give an impression that to prevent rising of presumption under Section 106 of the Act, the contract to the contrary mentioned in the said provision must be written contract. But as extracted above a reading of the provision of Section 106 of the Act would show that in the body of the section there is no mention of 'written contract to the contrary'. It only mentions of 'contract to the contrary'. The learned Counsel for the appellant seeks to draw support for his contention from a judgment of the Supreme Court in Shree Sajjan Mills Ltd v. Commissioner of Income Tax, MP Bhopal, AIR 1986 SC 486. What has been observed by the Supreme Court in that case was that marginal note or head note is a relevant factor to be taken into consideration for considering the ambit of the section. A marginal note is a descriptive and non-operative component of a provision. It is certainly a part of the Act. It may be considered for construing the section or any other provisions of the Act, provided that due account is taken of the fact that its function is merely to serve as a brief and therefore an inaccurate guide to the content of the section. As observed by the Apex Court in Chandroji Rao v. The Commissioner of Income Tax, MP Nagpur, , the marginal note does not restrict the width and spread of the section. It is a label affixed for convenience and not intended to have substantive effect. It is now well settled that if the marginal note contradicts the text, it at best puts the interpreter on alert to carefully look at the contents of the section for the purpose of interpretation. But it is equally well settled that marginal note to a section cannot control the language used in the section. It can be looked at for the purpose of ascertaining the general purpose of the provision and the mischief at which it is directed.
12. In this case the marginal note mentions 'contract in writing to the contrary' whereas the Section itself merely refers to a 'contract to the contrary'. Thus, it is not possible to hold that unless there is written contract to the contrary, the presumption under Section 106 of the Act has to be drawn that where the lease is for manufacturing purpose, it shall be deemed to be year to year lease terminable with six months' notice. It fact, if such contract providing for year-to-year lease was in writing such a lease under Section 107 of the Act would be required to be registered and unless it is registered, the terms thereof cannot be looked into. If such a term is incorporated in a registered deed of lease in conformity with Section 107 of the Act, then there would be no need to refer to Section 106 of the Act for raising any presumption because the lease deed which is in conformity with Section 107 itself would be guide for ascertaining as to the terms of the lease agreement between the parties. However, in this case, as stated above, there is a specific plea of the plaintiff, which remained uncontroverted that it was agreed that the lease was from month to month.
13. The learned Counsel for respondent Shri V.S.R. Anjayeyulu relies on the case of Shri Janki Devi Bhagat Trust, Agra v. Ram Swarup Jain, , in which the Supreme Court held that where manufacturing lease was from month to month and for a period of not exceeding one year, under an unregistered lease deed, it was not compulsorily registerable under the first part of Section 107 of the Act and lease being from month to month 15 day's notice required under second part of Section 106 and not six months'. Notice under the first part of Section 106 was sufficient to terminate the tenancy. In Ram Kumar v. Jagdish Chandra Deo, Dhabal Deb, , the Supreme Court held that the contract to the contrary as contemplated in Section" 106 of the Act need not be express contract. It may be implied, however, it should be a valid contract. It has been held that if the contract to the contrary is not valid, then presumption under Section 106 of the Act would be raised. The learned Counsel for the appellant points to the passage in paragraph 13 of the said judgment. It has been observed in the said judgment that Section 106 lays down a rule of construction, which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. It is further stated that the rule of construction embodied in the section applied not only to express leases of uncertain duration but also to leases implied by law which maybe inferred from possession and acceptance of rent and other circumstances. It is difficult to conceive how this judgment supports the case of the appellant herein. The question in this case is whether the lease should be deemed to be year to year on the ground that it is a lease for manufacturing purpose or whether it is a lease from month to month. The presumption that it was a lease for year to year on the basis that it is a manufacturing lease can be drawn in the absence of a contract to the contrary. In this case, as seen above, there is said to be a contract to the contrary under which the parties agreed that it was a month-to-month lease. In the absence of any contract to the contrary, raising presumption under Section 106 does not arise. The ratio in the Supreme Court case in Janaki Devi Bhaghat Trust v. Ramswarup Jain cited supra certainly applies to this case.
14. The decision Kullwant Rao v. State of Punjab, , does not land support to the case of the appellant on facts as the lease in that case was year to year.
15. In view of this, the contention that the tenancy was not validly terminated inasmuch as six months notice contemplated under Section 106 of the Act was not given has no legs to stand. Once it is held that it was a month-to-month tenancy, 15 days' notice for terminating the tenancy would be sufficient under Section 106 of the Act. There is no grievance that there is any infirmity or defect in the notice Ex.A1, if it is to be treated as a notice for 15 days.
16. In the result this appeal is dismissed but under the circumstances without costs. Considering the circumstances of the case, the appellant-tenant is granted two months time for vacating the premises failing which is shall be open to the plaintiff-landlord to seek eviction by executing the decree.