Jabbar vs Syed Kamran Wekar and others

S.P. Mehrotra, J.—This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the judgment and order dated 15.4.1994 (Annexure3 to the writ petition) passed by the learned Judge, Small Causes Court, Bulandshahr and the judgment and order dated 16.7.2003 (Annexure5 to the writ petition) passed by the learned Additional District and Sessions Judge (Court No. 5), Bulandshahr.

The dispute relates to a shop situated in Wikar Market, Saidpur Road, Kasba Gulawthi, Pargana Agauta, DistrictBulandshahr, the details whereof are given in the plaint of the suit referred to hereinafter. The said shop has hereinafter been referred to as "the disputed shop".

It appears that the respondents filed a suit against the petitioner (Jabbar) and Ladua for eviction and arrears of rent etc. in respect of the disputed shop. The said suit was registered as SCC Suit No. 52 of 1987.

It was, inter alia, stated in the said suit that the petitioner (Jabbar) and Ladua were the tenants of the disputed shop at a monthly rent of 300/; and that the disputed shop was constructed in the year 1982 and as such, the provisions of the U.P. Act No. XIII of 1972 (in short "the Act") were not applicable to the disputed shop; and that the tenancy of the petitioner (Jabbar) and Ladua was determined by a registered notice dated 10.11.1987 which was served on the petitioner (Jabbar ) and Ladua on 12.11.1987; and that after the service of the notice, the petitioner (Jabbar) and Ladua sent rent by moneyorder for the period from 1.9.1987 to 30.11.1987, which was received by the respondents; and that the petitioner (Jabbar) and Ladua did not vacate the disputed shop within the time mentioned in the notice.

The said suit was contested by the petitioner (Jabbar) and Ladua by filing written statement, copy whereof has been filed as Annexure2 to the writ petition. It was, inter alia, admitted in the said written statement that the disputed shop was constructed in the year 1982. It was, inter alia, also admitted in the said written statement that the rent for the period 1.9.1987 to 30.11.1987 had been sent to the respondents by money order, which was received by the respondents. It was, inter alia, further alleged in the said written statement that the rent for the month of December, 1987 was sent to the respondent No. 1 by moneyorder, but the same was returned; and that, thereafter, on 19.3.1988, the rent for the period 1.12.1987 to 29.2.1988 was sent by money order in the name of the respondent No. 1, but the same was also returned.

Both the sides led oral and documentary evidence in support of their respective cases.

By the judgment and order dated 9.4.1993, the said suit for eviction and arrears of rent etc. was decreed by the learned Judge, Small Causes Court, Bulandshahr. Thereupon, it appears that the petitioner (Jabbar) and Ladua filed a revision under section 25 of the Provincial Small Cause Courts Act, 1887. The said revision was allowed by the judgment and order dated 10.11.1993, and the matter was remanded to the learned Judge, Small Causes Court with the direction to decide the question as to whether the petitioner (Jabbar) and Ladua had denied the title of the respondents, and as to whether the notice under section 106 of the Transfer of Property Act stood waived on the ground of acceptance of rent by the respondents after the said notice.

After the remand, the learned Judge, Small Causes Court, Bulandshahr by the judgment and order dated 15.4.1994 decreed the said suit for ejectment and arrears of rent etc.. It was, inter alia, held that as after the remand, the petitioner (Jabbar) and Ladua amended their written statement and accepted the title of the respondents, there was no question of eviction of the petitioner (Jabbar) and Ladua on the said ground.

As regards, the question of waiver of the said notice, it was inter alia, observed that there was no dispute that the rent sent by the moneyorder for the period with effect from 1.12.1987 and thereafter to the respondent No. 1 was refused and the same was being deposited by the petitioner (Jabbar) and Ladua in the Court. It was, inter alia, further held that the rent for the period 1.9.1987 to 30.11.1987 was sent by moneyorder to the respondents on 18.12.1987; and that the said notice dated 10.11.1987 sent by the respondents to the petitioner (Jabbar) and Ladua was served on the petitioner (Jabbar) and Ladua on 12.11.1987, and thus, the tenancy of the petitioner (Jabbar) and Ladua stood determined on the expiry of one month, i.e., on 11,12.1987, and as such, if the respondents had accepted rent for any period prior to 11.12.1987, even after giving the said notice, the notice would not be deemed to have been waived on this ground. It was, inter alia, further held that as the provisions of the Act were not applicable, the respondents were entitled to evict the petitioner (Jabbar) and Ladua on the expiry of the period of notice given to them determining their tenancy.

Thereupon, the petitioner (Jabbar) and Ladua filed revision which was registered as SCC Revision No. 36 of 1994. By the judgment and order dated 16.7.2003, the learned Additional District Judge (Court No. 5), Bulandshahr dismissed the said revision. It was, inter alia, held that the petitioner (Jabbar) and Ladua having admitted in their written statement that the disputed shop was constructed in the year 1982, there was no occasion for framing any point of determination on the said question. It was, inter alia, further held that the disputed shop was constructed in the year 1982 and the suit had been filed in the year 1987 i.e., after 5 years of the construction of the disputed shop, and as such, the provisions of the Act were not applicable to the disputed shop.

Thereafter, the petitioner (Jabbar) and Ladua filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri M.A. Qadeer, learned Counsel for the petitioner and Shri M.K. Gupta, learned Counsel for the respondent No. 1.

It is submitted by Shri Qadeer that the burden for proving that the disputed shop had been constructed in the year 1982 was on the respondents/landlords, and the Courts below failed to appreciate the said aspect of the case. Shri Gupta, learned Counsel for the respondent No. 1 submits that in paragraph 3 of the plaint, a clear assertion was made on behalf of the respondents that the disputed shop had been constructed in the year 1982. The said assertion made in paragraph 3 of the plaint was admitted by the petitioner (Jabbar) and Ladua in paragraph 3 of the written statement. Therefore, the submission proceeds, there was no dispute between the parties that the disputed shop had been constructed in the year 1982. In the circumstances, the Courts below were not required to frame any point of determination on the said question, nor was there any question for the respondents/landlords for discharging the burden of proving the said fact.

Having considered the submissions made by the learned Counsel for the parties, I am of the opinion that the submission made by Shri M.A. Qadeer, learned Counsel for the petitioners cannot be accepted. In paragraph 3 of the plaint (Annexure1 to the writ petition), it was stated by the respondents that the disputed shop had been constructed in December, 1982. In paragraph 3 of the written statement (Annexure2 to the writ petition) filed on behalf of the petitioner (Jabbar) and Ladua, the averments made in paragraph 3 of the plaint regarding the construction of the disputed shop in the year 1982 were admitted. Hence, there was no dispute between the parties in regard to the date of construction of the disputed shop. In the circumstances, there was no occasion for the respondents/landlords to lead any evidence for proving the date of construction of the disputed shop.

The disputed shop having been admitted to have been constructed in the year 1982 and the said suit having been filed in the year 1987, the provisions of the Act were evidently not applicable to the disputed shop.

It is further submitted by the learned Counsel for the petitioners that in view of the fact that the money order sent to the respondents in respect of the rent for the period 1.9.1987 to 30.11.1987 was accepted by the respondents on 18.12.1987, i.e., after the service of the said notice dated 10.11.1987, the said notice stood waived. Shri Gupta, learned Counsel for the respondent No. 1 submits that the said notice dated 10.11.1987 was served on the petitioner (Jabbar) and Ladua, and as such, the tenancy of the petitioner (Jabbar) and Ladua would stand determined on the expiry of 30 days from 12.11.1987. In the circumstances, the submission proceeds, the petitioner (Jabbar) and Ladua were liable to pay rent for the period upto the expiry of the said period of 30 days with effect from 12.11.1987, and such rent could be accepted by the respondents/landlords at any point of time.

I have considered the submissions made by the learned Counsel for the parties. I am of the opinion that the submissions made by Shri Qadeer, learned Counsel for the petitioners cannot be accepted. As is evident from the narration of the facts above, the notice dated 10.11.1987 was served on the petitioner (Jabbar) and Ladua on 12.11.1987. The tenancy of the petitioner (Jabbar) and Ladua in respect of the disputed shop would, therefore, come to an end on the expiry of 30 days with effect from 12.11.1987. The petitioner (Jabbar) and Ladua were, therefore, liable to pay rent for the period till the expiry of 30 days from 12.11.1987. The moneyorder, which was received by the respondents on 18.12.1987 was in respect of the rent for the period 1.9.1987 to 30.11.1987, i.e., for a period anterior to the date of expiry of the said period of 30 days with effect from 12.11.1987. Hence, in my view, the acceptance of rent for the period 1.9.1987 to 30.11.1987 on 18.12.1987 could not result in any waiver of the said notice dated 10.11.1987.

Section 113 of the Transfer of Property Act provides as follows :

"113. Waiver of notice to quit. A notice given under section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.

Illustrations

(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and 8 remains in possession. A gives to B as lessee a second notice to quit. The first notice, is waived.

Illustration (a) shows that in case, if the lessee tenders rent and lessor accepts rent, which has become due in respect of the property since the expiration of the notice, then the notice stands waived. Therefore, it follows that if the rent in respect of the period before the expiration of the notice is accepted, it would not result in the waiver of notice.

In the present case, as noted above, the rent which was accepted on 18.12.1987 was for the period 1.9.1987 to 30.11.1987 i.e., for a period anterior to the date of expiry of the period of 30 days since the date of service of the said notice dated 10.11.1987. Therefore, even if the said rent was accepted, the notice dated 10.11.1987 would not stand waived.

In view of the aforesaid discussion, I am of the opinion that the writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.

Shri M.A. Qadeer, learned Counsel for the petitioner (Jabbar) then submits that reasonable time be granted to the petitioner (Jabbar) for vacating the disputed shop.

I have heard Shri M.A. Qadeer, learned Counsel for the petitioners and Shri M.K. Gupta, learned Counsel for the respondent No. 1 on the said question also.

Having considered the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, it is directed the petitioner (Jabbar), if not ALR eady evicted, will not be evicted from the disputed shop till 31.3.2004 provided the petitioner (Jabbar) and Ladua give undertaking on their joint personal affidavit within six weeks from today incorporating the following conditions :

(1) The petitioner (Jabbar) and Ladua will vacate the disputed shop on or before 31.3.2004 and handover its peaceful vacant possession to the respondents.

(2) The petitioner (Jabbar) and Ladua will deposit within six seeks from today the entire decretal amount with rent/damages at the decreed rate for the period upto November, 2003. The amount, if any, ALR eady deposited by the petitioner (Jabbar) and Ladua in the suit/revision may be adjusted.

(3) The petitioner (Jabbar) and Ladua will continue to pay rent/damages at the decreed rate to the respondents with effect from December, 2003 till the date of vacating the disputed shop by 7th of each succeeding month.

(4) The amount deposited as aforesaid may be withdrawn by the respondents without furnishing any security.

In case the requisite undertaking is not given within the aforesaid period or any of the conditions incorporated in the undertaking is violated, this order granting time to the petitioner (Jabbar) for vacating the disputed shop will stand automatically vacated, and it will become open to the respondents to execute the decree forthwith.