Giriraj Prasad vs Shyam Sunder Agrawal

Devendra Pratap Singh, J.—Heard Learned Counsel for the parties.

This petition is directed against a revisional judgment dated 23.4.2002 by which the suit of the Respondent landlord for eviction has been decreed.

The Respondent landlord instituted S.C.C. Suit No. 11 of 1991 with the allegation that he is the owner and landlord of the disputed shop bearing municipal No. 70 in Jagannathpuri, Mathura which was newly constructed in 1983 and where the Petitioner was a tenant at Rs. 250 per month apart from water and house tax. It was further pleaded that the building was beyond the purview of U.P. Act No. 13 of 1972 (hereinafter referred to as the ''Act''), but tenant had defaulted in payment of rent and house and water tax since January 1989 and despite a composite notice dated 27.6.1989 and 11.7.1989, neither the amount was paid nor the tenant vacated the premises forcing him to file the suit for eviction.

The tenant contested the said suit denying that it was a new construction and claiming that the premises was covered by the provision of the Act and that no notice was ever served to him. It was further asserted that he was entitled to continue with his tenancy from 15th January, 1989 with 20% enhancement of rent as was agreed between the parties and the Plaintiff could not evict him. It was also asserted that on the date of first hearing, the entire rent from January 1989 uptil the date was deposited with the Court and, therefore, he was entitled to the benefit of Section 114 of the Transfer of Property Act (hereinafter referred to as the T.P. Act'') and u/s 20 (4) of the Act.

The trial court after examining the registered rent deed dated 16.11.1984 and other evidence on record came to the conclusion that the premises was not covered by the Act. It went on to find that the Petitioner was guilty of default and, therefore, it decreed the suit for arrears of rent. However, as it found that the notice was not duly served on the correct address, it refused the decree of eviction.

The revisional court after coming to the conclusion that the trial court had illegally ignored the registered receipt which had been exhibited as paper No. 26ga alongwith the receipt of service under postal certificate held that the notice was duly served. After considering the terms of the rent deed dated 16.11.1984, it found that once the tenancy had not been extended and the landlord had refused to accept the rent, the Petitioner was not entitled to the protection u/s 116 of the T.P. Act and thus decreed the suit in its entirety.

Learned Counsel for the Petitioner has urged that presumption of service drawn by the revisional court was erroneous as the registered notice was not sent at the correct address.

The revisional court is right in holding that the trial court did not advert itself to the receipts of the registered notice which was available on record as paper No. 26ga. The admitted address of the tenant was duly mentioned in the notice and another notice was sent under postal certificate. After considering the effect of the documentary evidence, it was justified in holding that the notice was sent at the correct address.

Both the parties admit that it was a tenancy by contract entered between the parties on 16.11.1984, a copy of which is annexed with the writ petition and is a registered document. There is a covenant as condition No. 13 limiting the period of tenancy to a period of four years and two months viz. ending on 15th January, 1989. However, the tenancy was renewable for a further period through a registered deed by mutual agreement with an increase of 20% of the original rent. It is apparent from a perusal of the deed that it was a fixed term tenancy renewable with mutual consent through a registered document with enhanced rent of 20%. It is admitted to the Petitioner that he did not exercise his option of taking over the new settlement after expiry of the initial period nor within a reasonable time thereof he exercised the option. It is also admitted that after January 1989 the landlord did not accept any rent. A Division Bench of the Calcutta High Court in the case of Banshidhar Durga Das Dutta Vs. Ishan Chandra Chatterji, , while considering a similar fixed period lease, after finding that the lessee did not exercise his option even after expiry of ten months, held that the tenant cannot resist the Plaintiffs claim for possession.

Assuming that the notice u/s 106 of T.P. Act was not served on the correct address, but as it is a case of fixed term tenancy, it would be necessary to examine as to whether a notice u/s 106 of T.P. Act was at all necessary and whether the tenant could be said to be holding over. The Apex Court in the case of Dattonpant Gopalvarao Devakate Vs. Vithalrao Maruthirao Janagaval, . was considering a somewhat identical situation as to whether notice u/s 106 T.P. Act was necessary in a case of fixed term tenancy, where the landlord had even accepted the rent. After considering the pronouncement of the Federal Court and its earlier judgments, it held that no notice is necessary if a lease of immovable property is determined under Clause (a) of Section 111 of the T.P. Act by efflux of time limited thereby. In the case at hand, admittedly even rent was not paid, the ratio more than covers the present case.

There is neither any pleading nor any proof of the Petitioner holding over. In Smt. Shanti Devi v. Amal Kumar Banerjee AIR 1981 SC 1550, the Apex Court held that in a case of a lease for a fixed period, the Court, before examining the validity of a notice u/s 106 of T.P. Act, would have to examine the necessity of the notice because in the absence of any proof of holding over within the meaning of Section 116 of the T.P. Act, the case would squarely fall within Section 111 (a) of the T.P. Act. It went on to hold that even if there is any allegation that the lease was month to month, the pleadings of the parties would not be determinative of the nature of the lease as they cannot alter intrinsic character of a lease by their pleadings.

More recently in Shanti Prasad Devi and Another Vs. Shankar Mahto and Others, , the Apex Court was confronted with a situation as to whether after expiry of a fixed term lease, acceptance of rent and allowing use and occupation of the lease premises would amount to "holding over", it negatived the contention in the following paragraph 19 of the report:

The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure, Le., on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the face of specific Clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was "holding over" as a lessee within the meaning of Section 116 of the Transfer of Property Act.

Therefore, even assuming that the notice was invalid or was not served, the tenancy of the Petitioner stood determined by efflux of time u/s 111 (a) as such there was no necessity of a notice u/s 106 of the T.P. Act and in view of Clause 13 of the rent deed, there was no question of holding over by the Petitioner.

In view of the reasons given hereinabove, the Court is not inclined to exercise its power under Article 226 of the Constitution of India. Rejected.