Allahabad High Court
Mahesh Mehrotra And Others vs U.O.I. Thru. Secy. Deptt. ... on 14 July, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:40102 Court No. - 7 Case :- S.C.C. REVISION No. - 20 of 2020 Revisionist :- Mahesh Mehrotra And Others Opposite Party :- U.O.I. Thru. Secy. Deptt. Telecommunication New Delhi And Ors Counsel for Revisionist :- Sudeep Kumar,Avdhesh Kumar Pandey,Radhika Verma Counsel for Opposite Party :- A.S.G.,Pratul Kumar Srivastava,Rajeev Kumar Sinha Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the revisionists and Sri Satyajit Banerjee, learned Counsel for the respondents no.3, 4 and 5.
2. The present revision has been filed challenging an order dated 22.01.2020 passed in Execution Case No.11 of 2002 (Mahesh Mehrotra and others vs Union of India and others).
3. The facts in brief as arise and recorded are that the revisionist is a landlord of the premises, which was a residential building and was governed by the provisions of U.P. Act No.13 of 1972. It is recorded that the premise was handed over to one Major M.S. Khan, the then Post Master General of U.P. Circle for residential purpose at monthly rent of Rs.257.50. Subsequently, as the rent was not paid, a notice was served under Section 106 of the Transfer of Property Act read with Section 80 of C.P.C. It is also recorded that the tenant Major M.S. Khan sub-let the premises and further without consent of the landlord used the premises in question for commercial purposes. Thereafter the revisionist preferred SCC Suit No.15 of 2000 (Mahesh Mehrotra and others vs Union of India and others) before the JSC Court. The suit proceeded ex-parte against the defendants vide order dated 07.07.2000 and was ultimately decreed on 30.08.2001. The revisionist thereafter preferred execution case on 02.09.2022 seeking execution of the decree dated 30.08.2001, which was registered as Execution Case No.11 of 2002. In the said execution case, the respondents-defendants appeared and stated that they had filed an application under Order 9 Rule 13 of C.P.C. as the decree was ex-parte. The said application filed by the respondents no.1 to 3 was registered as Misc. Case No.1C of 2003 and the same was rejected vide order dated 16.11.2013. Subsequently, the respondent no.4 also moved an application under Order 9 Rule 13 of C.P.C., which was registered as Misc. Case No.2C of 2003, which was also rejected vide order dated 16.11.2013.
4. It is stated that against the rejection of the application under Order 9 Rule 13 of C.P.C., no further steps was taken, as such, the said order attained finality. Against the ex-parte decree also, no revision was preferred, as such, the same also attained finality. Subsequently, in the execution filed by the revisionist, the respondent no.4 had filed objection in the Execution Case No.11 of 2002 under Section 47 of C.P.C., which was registered as Misc. Case No.59C of 2015.The said objection was rejected vide order dated 04.11.2016. It also bears from the record that during the pendency of the execution case, another case being Misc. Case No.633 of 2019 was filed under Order 21 Rule 58 of C.P.C. by the respondent no.4 and an application was again filed by the respondents under Order 21 Rule 97 of C.P.C. on 21.11.2008, which was marked as Paper No.C-24. The said application was rejected vide order dated 20.09.2013. It also bears from the record that the sub-tenant had filed application under Order 21 Rule 97 of C.P.C., which was rejected vide order dated 29.03.2019. It is also stated that as the rents were not being paid, an application is also filed under Section 21(8) of the U.P. Act No.13 of 1972 which ultimately culminated in the judgment dated 15.05.2025 passed in Writ-A No.1000160 of 2010 (Bharat Sanchar Nigam Limited vs Additional District Judge and others) and Writ-A No.11339 of 2016 (Mahesh Mehrotra vs Additional City Magistrate-I/ Rent Control and Eviction Officer) wherein this Court had held that under Section 21 of the Act, 1972, the landlord has no right to seek eviction on personal ground, however, he was entitled to seek enhancement of rent in terms of the proviso to Section 21(8) of U.P. Act No.13 of 1972.
5. In respect of the proceedings initiated for arrears of rent under Section 20, the facts have already been recorded hereinabove. In the said proceedings, an order came to be passed on 22.01.2020 whereby, the Applications No.C-34, C-35 and B-3 filed by the respondents as well as the Application No.A-3 were disposed off and it was held that decree was not executed mainly on the ground that as, an application has been filed for enhancement of rent, the decree became unexecutable.
6. The Counsel for the revisionist submits that the said order is erroneous as, the restriction with regard to eviction under the proviso to Section 21 would not apply as there was arrears of rent in default and no such restriction apply insofar as it relates to proceedings under Section 20.
7. The Counsel for the respondent on the other hand states that once the rent has been enhanced, no interference is required and the revision is liable to be dismissed. Moreso the enhancement of rent has already been deposited before this Court.
8. The Counsel for the revisionist relied upon the judgment of the Hon'ble Supreme Court in the case of Bhawanji Lakhamshi and others vs Himatlal Jammadas Dani and others: (1972) 1 SCC 388 and places heavy reliance on paras 9 and 10 of the said judgment, which are as under:
" 9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another(), the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116of the Transfer of Property Act and Mukberiea J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to brine a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116of the Transfer of Property Act, and that is evident from the following observations :-
"Turning now to the main point, it will be seen that the section Postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When further the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
10. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quilt, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy. In Ganga Dutt Murarka v. Kartik Chandra Das (Supra)this Court observed as follows :-
" By the Rent Restriction Statutes at the material time, Statutory immunity was granted to the appellant against eviction, 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 s. 116, Transfer of Property Act.Failure to take action which was consequent upon a statutory 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 will a tenant whose right of occupation is determined and who remains in occupationtion by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may un- doubtedly 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 tenancy is 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 thepossession 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 conditioned.""
9. In the light of the arguments advanced and recorded above, it is to be seen whether the executing court erred in dismissing the application for execution of the decree. The executing court recorded in the impugned order that after passing of the decree in favour of the landlord, the proceedings were initiated under Section 16(1)(b) of the U.P. Act No.13 of 1972 alleging that the respondents were unauthorized occupants. The said application was rejected and in the revision filed against the same, it was held that the BSNL cannot be treated to be an unauthorized occupant and the revision was dismissed. In the light of the said, the decree passed in SCC Suit No.15 of 2000 came to an end after the tenants were treated to be not unauthorized occupant. The executing court took recourse to Section 116 of the Transfer of Property Act by holding that as the landlord had accepted the rent, the tenancy would be renewed. On the basis of the said observation coupled with the fact that the executing court noted that in the proceedings initiated by the landlord under Section 21 (8), the rent was enhanced and thus it was decided that the decree becomes unexecutable.
10.The said approach of the executing court is wholly erroneous, inasmuch as, admittedly the decree passed in favour of the petitioner attained finality and the executing court had no jurisdiction to go behind the decree as has been done by means of the impugned order, thus, the order impugneddated22.01.2020 cannot be sustained and is set aside. The revision standsallowed.
11. The JSC Court is directed to execute the decree forthwith. The revisionist would be at liberty to withdraw the amount deposited by the respondents on moving an appropriate application.
Order Date :- 14.7.2025 akverma