Allahabad High Court
Tara Chandra vs Rajesh Baranwal And 2 Others on 30 January, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:6549 Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 3121 of 2024 Petitioner :- Tara Chandra Respondent :- Rajesh Baranwal And 2 Others Counsel for Petitioner :- Rajeiu Kumar Tripathi Counsel for Respondent :- Abdul Alim Khan,Rakesh Kumar Srivastava Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the petitioner, Sri Rakesh Kumar Srivastava, learned counsel for the respondent and perused the record.
2. The present petition has been filed by the petitioner challenging the order dated 08.08.2014 passed by the JSCC Court whereby the suit filed by the landlord was decreed and eviction decree as well as rent decree were passed against the petitioner as well as the order dated 01.05.2024 whereby the revision preferred under Section 25 Small Causes Court Act was also dismissed.
3. The facts in brief are that the petitioner and the respondent landlord entered into a tenancy agreement, which was valid for a term of five years from 01.11.2005 to 31.10.2010 through an unregistered agreement. In terms of the said agreement, the petitioner was liable to pay rent at the rate of Rs.225/- per month in addition thereto an amount of Rs.30,000/- was kept as security. The said agreement is on record as Annexure No. 3 to the writ petition. It was further stipulated in the agreement that the term of tenancy was five years and after every five years, the rent would be enhanced by Rs.25/- per month. It was further provided that the liability of payment House tax, water tax and water charges would be that of the landlord. After the tenancy period came to an end as prescribed in the agreement, the petitioner tendered rent at the enhanced rate at the rate of Rs.275/- per month, which was accepted by the landlord initially, however, a notice of determining the tenancy was served under Section 106 of the Transfer of Property Act, which was duly served upon the petitioner. It is also on record that thereafter the landlord stopped accepting the rent and filed an eviction suit. In the said eviction suit as many as five points of determination were framed. 3rd issue framed was with regard to arrears of rent w.e.f. 01.09.2011 and house tax and water tax w.e.f. 01.11.2011. The issue no. 4 was with regard to striking of the evidence by giving the benefit under Order XV Rule 5. 5th issue was with regard to service of notice. While deciding the issue no. 3, the JSCC Court held that the claim of the landlord in respect of the house tax and water tax could not be decreed, however it was found that the petitioner was in default with regard to the payment of rent w.e.f. 01.09.2011. While recording the finding on issue no. 4, the JSCC Court held that in view of the bar by virtue of Order XV Rule 5, the defence was liable to be struck of. While deciding the issue no. 5 the JSCC Court held that notice was a valid notice. The said judgment passed on 08.08.2014 was challenged by filing a revision. During the revision, the petitioner filed an application under Section 114 of the Transfer of Property Act, which is said to have been allowed by the revisional Court, however, the said revision came to be finally dismissed on 01.05.2024 and the judgment passed by the JSCC Court was affirmed.
4. The submission of the counsel for the petitioner is that once the landlord had accepted the rent after the term of tenancy as agreed had come to an end on 31.10.2010, the petitioner was tenant holding over and thus was entitled to the benefit of Section 116 of the Transfer of Property Act. He further argues that the petitioner was also entitled to the benefit as prescribed under Section 114 of the Transfer of Property Act. It is further argued that after the lease period had come to an end on 31.10.2010 and the respondent had accepted the rent, he would be entitled to benefit of Section 116 of the Transfer of Property Act and the lease could not have been determined as the lease would continue for another term of five years as was written in the agreement in between the parties. He further argues that the order passed by both the Courts are perverse and thus are liable to be set aside. He lastly argues that the petitioner had sent rent through money-order, which was refused to be accepted by the landlord and in view of the said refusal, the respondent was barred from instituting an eviction suit. Reliance is placed upon the judgment of this High Court in the case of Gokaran Singh and others Versus Ist Additional District and Sessions Judge, Hardoi and others, 2000 SCC Online ALL 174.
5. Sri Rakesh Kumar Srivastava, learned counsel appearing on behalf of the respondents, on the other hand supports the judgment by arguing that the judgment is in accordance with the mandate of the T.P. Act.
6. Considering the submissions made at the Bar, the facts that emerge are that the agreement entered into in between the petitioner and the respondent landlord from 01.11.2005 up to 31.10.2010 was an unregistered agreement, which is specifically barred by virtue of the U.P. Amendment of Section 107 of the Transfer of Property Act. In any event, no steps for determining the tenancy took place during the subsistence of the agreement. It is also admitted that the notice under Section 106 of the Transfer of Property Act was duly served through which the tenancy was determined. It is also admitted that after the service of notice under Section 106 of the Transfer of Property Act, no amounts were accepted by the landlord. In the backdrop of these facts, the submission of the counsel for the petitioner is that he would be a tenant holding over as prescribed under Section 116 of the Transfer of Property Act merits rejection for the sole reason that for holding over, it is essential that after the determination of the lease, the lessor accepts the rent, no such material exists to demonstrate the same.
7. The other argument of the counsel for the petitioner is that after the agreement had come to an end, rents were accepted also merits rejection as in the present case, the tenancy was determined by service of notice under Section 106 of the Transfer of Property Act and no claim was made by the landlord of the lease being determined by virtue of any provisions contained in Section 111 of the Transfer of Property Act. He further argues that in terms of the language used in the notice under Section 106 of the Transfer of Property Act, it was stated that as the rent has not been paid, the tenancy is being determined, according to the counsel for the petitioner, it would not satisfy the test of notice as prescribed under Section 106 of the Transfer of Property Act, particularly when the rent was accepted by the landlord after the agreement had come to an end, the same further merits rejection, inasmuch as in terms of the language used under Section 106 of the Transfer of Property Act, the lease can be determined unless there is a contract to the contrary by giving 15 days notice irrespective of the reason mentioned therein. The submission of the counsel for the petitioner that benefit of Section 114 of the Transfer of Property Act ought to have been extended also merits rejection as the benefit of Section 114 of the Transfer of Property Act is available in the case of release against forfeiture for non payment of rent. The said benefit can be granted only if the lessee pays the arrears of rent before the first hearing of the suit with full cost, prima facie, in the order of the trial Court, there is no such pleadings or materials, as such, the benefit of Section 114 of the Transfer of Property Act is also not available to the petitioner.
8. Reliance is placed upon the judgment in the case of Gokaran Singh (Supra) has no relevance. The Larger Bench in the said case was confronted with three question, which are as under:-
"2. Thus, the following questions would require consideration by Larger Bench:
1. Whether a notice of demand can be held to be invalid or mala fide on the ground that the rent had been demanded at a higher rate than the correct rate, and if so whether the tenant can be absolved from the duty of complying with such a notice?
2. In a case where the landlord had earlier been refusing to accept rent at the correct rate and had been claiming rent at higher rate and the tenant had as a consequence of landlord's earlier refusal in the past, deposited the rent in Court under Section 30 and thereafter, landlord serves a formal notice of demand again at a higher rate, whether the tenant without tendering rent at the correct rate to the landlord has a right straightway to deposit the same under Section 30(1)?
3. On which party, does not burden of proof lie in regard to the existence as arrears of rent.?"
9. While answering the said question, the Larger Bench of this Court held as under:
"39. In view of the aforesaid discussions, three questions referred to the Full Bench, are answered as under:-
1. A notice of demand, by which rent is demanded at higher rate than the correct rate, cannot be said to be invalid or mala-fide. On receipt of such notice of demand, the tenant is not absolved from his duty to comply with the said notice. He can, however, tender arrears of rent at the admitted rate to the landlord.
2. If the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, the tenant as a consequence of landlord's earlier refusal in past, deposit the rent in the Court under Section 30 and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willingness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him to the landlord and has got no right to straightaway deposit the same under Section 30(1) of the Act.
3. Initial burden of proof with regard to the existence of arrears of rent lies upon the landlord. Once said burden is discharged, the tenant will have to prove the payment of rent. Where the landlord and tenant both produce evidence with regard to the existence of arrears and payment of rent, the question of burden to proof looses its importance."
The questions answered by the Full Bench quoted above have no relevance to the issues raised in the present petition, as such, cannot benefit the petitioner in any manner.
10. In view thereof, no interference is called for with the said order. The petition lacks merit and is accordingly dismissed.
Order Date :- 30.1.2025/Arun