AI Structured Summary
Not yet generated for this judgment
Judgment
Narayan Roy, J.—Both these civil revision applications have been tagged for hearing, as common questions of law and facts are involved, and, accordingly, have been heard together and are being disposed of by a common judgment.
Civil Revision No. 411 of 1994 is directed against the judgment and decree dated 27.1.1994, passed by the Munsif 3rd, Patna, in Title Eviction Suit No. 39 of 1992 ''and Civil Revision No. 412 of 1994 is directed against the judgment and decree, dated 27.1.1994 passed by the Munsif 3rd, Patna, in Title Eviction Suit No. 38 of 1992. Both the suits aforementioned have been decreed on contest and the Petitioners have been directed to evict the suit premises within 45 days from the date of judgment and hand over the vacant possession of the same to the Plaintiffs. Defendants Petitioners and the Plaintiffs opposite parties are common in both these civil revision applications.
Briefly staged the case of the Plaintiffs is that they are the owners of the suit premises described in Schedule I of the plaint and the Defendants are the tenants for a fixed period commencing from 1.4.1982 to 31.3.1992 by virtue of a registered deed of lease Ext. 1 (wrongly mentioned as Ext. IV in the impugned judgment of the Court below). The last lease (Ext. 1) in favour of the Defendants was for a period of ten years duly registered on 1.10.1983 executed by late Mrs. Qamrunisha Rizvi, wife of the Plaintiff No. 1 and the mother of Plaintiff Nos. 2 and 3 in favour of the Defendants. The period of lease commenced from 1.4.1982 and ended on 31.3.1992. It is the further case of the Plaintiffs that according to the terms of the aforesaid lease, the rent of the lease hold premises increased annually and the last rate of rent paid by the lessee to the lessor from 1.4.91 to 31.3.92 was at the rate of Rs. 1085/- and according to the terms of the lease aforementioned the lessese had agreed to handover the vacant possession of the suit premises to the lessor on expiry of the terms of the lease. Since the fixed term tenancy created by virtue of the lease aforesaid expired on 31.3.1992. and the Defendants did not handover the vacant possession of the suit premises to the lessors, the Plaintiffs sent notice to the Defendants to vacate the lease hold premises and on their refusal to do so they brought the suits aforementioned for eviction of the lessees, as provided u/s 11(1)(E) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act.)
Defendants-Petitioners appeared in the suit and contested the same by filing written statement on the ground that they are month to month tenants and not tenants under the Plaintiffs for a fixed term tenancy and as such the suit brought against them for their eviction are not maintainable and they are not liable to be evicted.
Briefly stated the case of the Defendants-Petitioners is that they were tenants since 1969 under the Plaintiffs opposite parties in the suit premises on the first floor as well as on the ground floor on monthly rental of Rs. 400/- per month which was extended from time to time from Rs. 400/- per month to Rs. 1100/- per month and there was no fixed term tenancy granted in their favour and the alleged date of lease dated 1.10.1983 commencing from 1.4.1982 to 31.3.1992 is a sham transaction and not binding upon them and the same was never operative nor was acted upon. It is the further case of the Defendants that after receiving notice from the Plaintiffs, they exercised their option for extension of the period of tenancy, which ultimately has been refused.
In the suits aforementioned the Plaintiffs examined four witnesses, whereas the Defendants examined only one witness and the learned trial Court upon the pleadings of the parties and on the basis of the materials and evidence on record decreed the suit directing the Defendants to give vacant possession of the suit premises to the Plaintiffs.
Mr. Ram Balak Mahto, the learned Counsel appearing on behalf of the Petitioners in both the civil revision applications, contended that the Petitioners were month to month tenants and the alleged lease of deed (Ext. 1) for a fixed period of 10, years was never acted upon. It has further been urged that the Petitioners had entered into an agreement in the year 1974 for fixed tenancy for a period of five years lasting in the year 1979 and after the expiry of the lease aforementioned the Plaintiffs had brought eviction suits being Title Eviction Suit Nos. 329 and 330 of 1979 against the Petitioners, which ultimately were compromised and on the basis of the compromise two agreements dated 16.4.1982 and 25.4.1982 were entered into, which have been marked as Exts. B and B/1 respectively, and as such lease was a part of the compromise and the alleged deed dated 1.10.1983 cannot be said to have been acted upon. It has further been urged that after expiry of the earlier lease in the year 1979 and after the suits of 1979 were compromised, the Petitioners continued month to month tenants under Plaintiffs and there is no question of their eviction on the ground of expiry of the fixed term tenancy for a period of ten years. Mr. Mahto has further urged that the lease in question (Ext. 1) is void since it is in contravention of Section 4 of the Act and the same is not binding upon the Petitioners and they could not have been ordered to be evicted on the basis of expiry of the lease deed (Ext. 1).
Mr. K.D. Chatterjee, the learned Counsel appearing on behalf of the Plaintiffs opposite parties, on the other hand, urged that the Petitioners were tenants to the lease hold premises for a fixed term tenancy commencing from 1.4.1982 to 31.3.1992 and on expiry of the fixed term tenancy the Petitioners were liable to be evicted. It has further been urged by Mr. Chatterjee that even after the earlier suits were compromised the agreement entered into in between the parties after the compromise cannot preclude the Plaintiffs from creating a fresh lease deed for a fixed term. He further urged that the lease-deed (Ext. 1) was duly executed by the Plaintiffs and the Defendants, which was binding upon the Petitioners and the same was acted upon, as the Petitioners went on paying the rents as stipulated in Clause 8(1) of the lease. Mr. Chatterjee further urged that this lease (Ext. 1) cannot be said to be void as the same is not violative of any provision of law, either the Act or under the general law. He further urged that the Petitioners never challenged the lease-deed to be void and in the High Court in the revision application, they cannot be allowed to challenge the same, saying that the same is void. Mr. Chatterjee further submitted that Section 4 of the Act is not applicable in the facts and circumstances of the case and Section 4 of the Act does not forbid the landlord from creating fixed term. It only prevents the landlord from enhancing the contractual rent. He therefore submitted that in the case at hand the landlord has not enhanced the contractual rent as entered into between the parties and the Petitioners remained tenants for a fixed term tenancy by virtue of the contract (Ext. 1).
Mr. Chatterjee has further urged that after the expiry of the previous lease in the year 1979, no rent has been collected by the Plaintiffs-landlords upto October 1982, and the Petitioners remained as statutory tenants. He has further urged that even assuming that the rent has been collected between 1979 and 1982 it is of no consequence.
The learned Counsel appearing on behalf of the Petitioners in support of the proposition that the lease-deed (Ext. 1) is void, as the same is in contravention of Section 4 of the Act, has placed reliance in the case of N.M. Verma v. Upendra Narain Singh 1978 PUR 32 (SB), wherein as per the majority view it has been held that Section 4 of the Act prohibits enhancement of rent during the continuance of the same tenancy. But where a new contract is with the consent of all the parties concerned substituted for one that had already been made, the section is not applicable.
It is well settled that the parties to an original contract can by mutual agreement enter into a new agreement in substitution of the old one. Thus where the original contract is put to an end and a new valid contract is substituted for the old contract, the section has no application. In these cases, I find that even after the compromise decree was passed and the agreement entered into between the parties came to a halt, a new contract was entered into in the year 1983 commencing from 1.4.1982 for a fixed term ending in the year 1992. In that view of the matter, it can safely be said that the same is not violative of Section 4 of the Act and Ext. 1 is not a void document. From the pleadings of the parties, it does not appear that the lease deed (Ext. 1) was not acted upon. On behalf of the Defendants, D.W. 1 has also admitted the fact in his deposition that, the lease-deed (Ext. 1) was entered into in between the parties.
On perusal of the compromise petition and the compromise decree and the agreements dated 16.4.1982 and 25.4.1982, which form part of the compromise, I find that there is mention about creation of a fixed term tenancy for five years or ten years and accordingly a fresh fixed term tenancy has been created by virtue of Ext. 1 for a period of ten years and accordingly the lease-deed (Ext. 1) appears to be in tune with the compromise entered into in between the parties.
I further find from the pleadings of the parties that the Petitioners went on paying rent to the Plaintiffs as agreed upon, vide Ext. 1, and, in that view of the matter, it cannot be accepted that the lease-deed (Ext. 1) has not been acted upon. Once the contract entered info in between the parties is acted upon, it cannot be said that the Petitioners are not tenants for a fixed term tenancy and they are month to month tenants.
In this case, I find that the Petitioners have paid rent to the landlords - Plaintiffs as per the lease-deed (Ext. 1) which was for a fixed term tenancy for a period of ten years commencing from 1.4.1982 and as such I hold that the Petitioners were tenants under the Plaintiffs for fixed term tenancy and they were liable to be evicted after the expiry of the said period.
From the materials on record, I find that the lease-deed (Ext. 1) has not been challenged during the continuance of the same and only after the lease-deed (Ext. 1) expired in the year 1992 this question about the validity of the lease deed is being raised for the first time in this Court. It is well settled that the validity of the limited tenancy must be objected to prior to the lapse of the lease and not as defence after the expiry of the lease-deed. In this connection, reference can be had to the case of Smt. Yamuna Maloo Vs. Anand Swarup, . In paragraph 21 of the judgment aforementioned it has been held as under:
Both in Vora''s case, and in Shiv Chander Kapoor''s case though not arising for determination in either, it has been stated while laying down the rule that proceeding to challenge limited tenancy has to be taken during the currency of the tenancy, an objection filed by the tenant could be looked into is indeed an obiter. We would like to make it clear that the rule having been stated to the contrary in Vohra''s case, there was indeed no warrant to indicate the contra situation. Perhaps to meet the eventuality which might arise in a particular case, neither of the two Benches of this Court wanted to close the avenue of enquiry totally, and that is why in both the cases decided by Coordinate Benches the exception has also been indicated. It must be understood on the authority of the said two decisions and our judgment now that if the tenant has objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord''s application for being put into possession. We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations. Unless the tenant is able to satisfy the Controller that they had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained.
In these cases the facts are not in dispute that for ten years the terms of the lease were performed by the parties and the rents were paid as specified in the lease deed and both the parties exercised their rights and performed their obligations. I have carefully examined the evidence on record and I find that no evidence on record has been adduced to the contrary. I, therefore, hold that after the contract between the parties was fully performed and acted upon and when the same was not objected to during the continuance of the same, now it is not open to the tenants to dispute the validity of the lease and thus I find sufficient force in the argument of Mr. Chatterjee.
Having heard the parties at length and considering the materials on record, I hold that the Petitioners were tenants for a fixed term tenancy under the Plaintiffs and they were not month to month tenants and as such they were liable to be evicted taking recourse to Section 11(1)(e) of the Act.
In the result, I find no merit in these applications which are accordingly dismissed, but without cost.