Allahabad High Court
Smt. Shakuntala Devi vs Santosh on 28 March, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 A.F.R. Case :- MATTERS UNDER ARTICLE 227 No. - 1944 of 2023 Petitioner :- Smt. Shakuntala Devi Respondent :- Santosh Counsel for Petitioner :- Avnish Kumar Srivastava Counsel for Respondent :- Rahul Pandey Hon'ble Neeraj Tiwari,J.
Heard Sri Avnish Kumar Srivastava, learned counsel for the petitioner and Sri Rahul Pandey, learned counsel for the respondent.
Case was heard on 27.3.2023, Court has passed the following order:-
"Heard Sri Avnish Kumar Srivastava, learned counsel for the petitioner and Sri Rahul Pandey, learned counsel for the respondent.
Learned counsel for the petitioner submitted that earlier he was tenant of plaintiff-respondent. During the tenancy, a registered agreement to sale dated 06.01.2009 was entered upon between the parties, upon a consideration of Rs. 3,00,000/-, out of which, petitioner has deposited 2,94,000/- but later on, plaintiff-respondent refused to execute the sale deed in favour of petitioner, for which, petitioner has filed suit for specific performance of contract, being Suit No. 876 of 2011. During the pendency of said suit, plaintiff-respondent has filed JSCC Suit No. 30 of 2014, upon which, notice has been issued, in which, he has not complied the provision of Order XV, Rule 5, C.P.C. on the ground that after execution of registered agreement to sale dated 06.01.2009, petitioner's title has been changed from tenant to purchaser.
In support of his contention, learned counsel for the petitioner has placed reliance upon the Judgment of Apex Court in the case of R. Kanthimathi And Anr. Vs. Beatrice Xavier (Mrs):AIR 2003 SC 4149.
Per contra, Sri Rahul Pandey, learned counsel for the plaintiff-respondent submitted that Apex Court in its latest judgment in Civil Appeal Nos. 1237-1238 of 2019 (Dr. H.K. Sharma Vs. Sri Ram Lal), after considering the judgment of R. Kanthimathi(Supra) has held that, that was based upon the peculiar language of agreement to sale, and not in rem. Therefore, in lack of such language, relationship of tenant and landlord shall continue.
At this stage, learned counsel for the petitioner submitted that he has not gone through the judgment of Apex Court in the matter of Dr. H.K. Sharma(Supra), therefore, he may be granted 24 hours time to go through the said judgment.
On the request of learned counsel for the petitioner, put up tomorrow, i.e. 28.03.2023 at 10.00 AM as fresh."
Learned counsel for the petitioner submitted that Apex Court in the matter of Dr. H.K. Sharma Vs. Sri Ram Lal passed in Civil Appeal Nos. 1237-1238 of 2019, agreement to sale was not a registered document whereas in the case of petitioner, agreement to sale is registered document, therefore, ratio of law settled in aforesaid judgment would not be applicable in the present case. He next submitted that as petitioner is already in possession of the house in question, therefore, there is no occasion for clause of deemed surrender.
Undisputed facts of the case is that petitioner was earlier tenant of house in question and registered agreement to sale dated 6.1.2009 was entered between the parties, but same has never been executed. It is also undisputed that petitioner has stopped to pay rent.
Once the payment of rent has been stopped coupled with this fact that agreement to sale has not been executed, status of petitioner has to be seen by this Court.
Being confronted by the Court that under which capacity he is still residing house in question upon which he has submitted that he is residing in house in question as purchaser. Again, Court has queried that without execution of sale deed and fulfilling terms and conditions of agreement to sale as to how, he has obtained the status of purchaser upon which, he could not satisfy the Court.
Sri Rahul Pandey, learned counsel for the respondent has opposed the submission of learned counsel for the petitioner and submitted that as on date, agreement to sale has not been executed and petitioner has filed suit for specific performance in which no stay order has been granted in favour of petitioner to reside in house in question. The stay order is only pertaining to non transfer of property in question. He next submitted that in light of judgment of Apex Court in the case of Dr. H.K. Sharma (supra), his tenancy has to be treated as terminated and further plaintiff-respondent is entitled for filing of application for eviction under Section 21(1)(a) of the the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act, 1972). He lastly submitted that as on date, status of petitioner is trespasser as neither he has paid rent nor agreement to sale has been executed.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as judgments relied upon. Facts of the case has already been narrated by this Court in its order dated 27.3.2023. Argument of learned counsel for the petitioner is based upon the judgement of R. Kanthimathi And Anr. Vs. Beatrice Xavier (Mrs):AIR 2003 SC 4149. Relevant paragraph nos.7 & 8 are quoted hereinbelow:-
"7. This Court in Arjunlal Bhatt Mall Gothani v. Girish Chandra Dutta held as under:
The appellants were tenants in the premises of the respondent-landlord and three suits, including an eviction suit, were pending against them. By an agreement between the appellants and the respondent, the respondent agreed to sell the whole property to the appellants for a certain sum to be paid to him by equal instalments. Clause 5 of the agreement provided that in case of default of any instalment, the agreement for sale would stand cancelled and if the purchasers failed to pay the defaulted instalments within one month's notice the payments made would stand forfeited and purchasers would make over possession of the property to the vendor.
xxx xxx Under Clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement, D/ June 7, 1959 was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement.
This decision clearly spells out that once there is agreement of sale between a land lord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller.
8. Thus within this legal premises, the submission by learned Counsel for (he respondent of revival of their old relationship of landlord and tenant when she repudiates this agreement by sending back to the tenant Rs. 20,000/- through a cheque, (which according to the appellant was not encashed) cannot be accepted. So we have no hesitation to reject the same. Every conduct of the landlady right from the date of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to be construed in law that she repudiated her old relationship of landlord and tenant. Thus after this parties enter into new cloak of seller and purchaser and their relationship to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale does not perform their obligations remedy may be availed in law as permissible under the law. Hence we have no hesitation to hold that Courts below including High Court committed error in holding that tenant committed wilful default. When appellant is no more tenant how can non-payment be construed as wilful default."
From perusal of judgment of R. Kanthimathi And Anr (supra), it shows that once the agreement to sale has been executed, status of petitioner would be changed and he is no more tenant, even if parties under the agreement of sale does not perform their obligations.
Apex Court in its recent case of Dr. H.K. Sharma (supra) has considered the judgment of R. Kanthimathi And Anr (supra) has taken specific view that language of agreement to sale in that case is different which indicates that parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship of the landlord and tenant. Relevant paragraphs of the said judgment are quoted hereinbelow:-
"21. It was his submission that it is for this reason, the application filed by the respondent as landlord of the tenanted premises to seek the appellant's eviction as his tenant from the suit house was wholly misconceived and not maintainable for want of any subsisting relationship of landlordtenant between them. It was, therefore, rightly dismissed by the Prescribed Authority and the Appellate Authority but wrongly allowed by the High Court by the impugned order.
27. Chapter V of the TP Act deals with the leases of Immovable property. This chapter consists of Section 105 to Section 117.
28. A lease of an immoveable property is a contract between the lessor and the lessee. Their rights are governed by Seection 105 to Section 117 of TP Act read with the respective State Rent Laws enacted by the State.
29. Section 111 of the TP Act deals with the determination of lease. Clauses (a) to (h) set out the grounds on which a lease of an immovable property can be determined.
34. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providing a specific clause in the agreement. It was, however, not done. On the other hand, we find that the conditions set out in the agreement do not make out a case of express surrender under clause
(e) or implied surrender under clause (f) of Section 111 of the TP Act.
35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts. Indeed, it will be clear from mere perusal of para 4 of the said decision quoted hereinbelow:
"4. As aforesaid, the question for consideration is, whether the status of tenant as such changes on the execution of an agreement of sale with the landlord. It is relevant at this junction first to examine the terms of the agreement of sale. The relevant portions of the agreement of sale records the following:
"I the aforesaid Mrs. Beatrice Xavier hereby agree out my own free will, to sell, convey and transfer the property to you Mrs. R. Kanthimathi wife of Mr. S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs.25,000/.
I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the Registering Authority, accepting and acknowledge payment of the balance of consideration of Rs. 5000/ (Rupees five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession." (Emphasis in Original)
36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship of the landlord and tenant.
37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly.
38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 105 to 117. Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993
39. A fortiori, the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellant's eviction from the suit house after determining the tenancy in question."
In the present case, agreement to sale is having no such condition about the surrender of house in question and termination of tenancy. It is very simply worded 'agreement to sale', which has not been executed. Agreement to sale is having six conditions. Condition no.6 is very relevant, which is quoted herebelow:-
"6- ;g fd mDr lEifRr ij dCtk izFke i{k f}rh; i{k dks o,oDr jftLVjh djk nsaxsA"
From perusal of the said condition, it is apparently clear that first party shall give possession of property in question to second party at the time of registry. Therefore, it is very much clear as in the case of R. Kanthimathi And Anr (supra), condition of agreement to sale was different and in the present case, it is similar to the condition of judgemnt of H.K Sharma (supra). In fact, there is no deeming clause of surrender of house or termination of tenancy in agreement to sale.
For execution, suit for specific performance is pending in which there is stay order only to the extent that landlord shall not transfer the property in question to any other person. Therefore, facts and controversy involved in the present case is squarely covered with the judgment of Apex Court in the case of Dr. H.K. Sharma (supra).
Not only this being confronted by the Court, learned counsel for the petitioner could not satisfy the Court under which capacity and provision of law, he is residing house in question once the agreement to sale has not been executed and payment of rent has been stopped by him.
I am of the firm view that once the agreement to sale has not been executed for any reason and payment of rent has also not been paid by petitioner-defendant (tenant), status of petitioner would not be purchaser or tenant, but a trespasser only.
In view of above facts mentioned hereinabove as well as law laid by this Court, the writ petition lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 28.3.2023 Junaid