Vijay Kumar and others vs Raj Kumar and another

J.S. Sekhon, J.—The Defendants have directed this revision petition against the order dated December 16, 1987 of the learned Additional District Judge, Barnala, restraining them from raising any further construction or making any alteration to the detriment of the Plaintiff-landlords during the pendency of the parent Suit.

In brief, the facts are that Raj Kumar and Mithan Lal landlords are owner of the factory in dispute comprising of one office room, one room for the machinery and some open space. This property was given or rent to the Defendants and one Angan Lal at the rental of Rs. 6000/- per annum from 1.11.1978 to 31.10.1981 through a rent note executed on 19.11.1978. The tenant continued enjoying the tenancy even after the expiry of the said period and paying the rent. Aforesaid Angan Lal died and his widow Mst. Sita Devi and daughter were arrayed as Defendants The premises in dispute allegedly became unfit and unsafe for human habitation inasmuch as its roof was supported with wooden props. It was alleged that the tenants without the consent of the landlords have started making material alterations in the demised premises by constructing two rooms and the construction of the third room is being under progress Along with the parent suit, an application for interim stay was also filed under the provisions of Order 39 Rules I and 2 of the Code of Civil Procedure. This application was resisted by the Defendant-Respondents, contending that the condition of the building was quite safe and sound. It was also stressed that as per terms of the rent note dated 19.11.1978, the Defendants were at liberty to make any construction in the demised premises without getting any further consent of the landlords and that the Defendants would be at liberty to remove such construction or realise the tentative value of the said construction from the landlords at the time of vacation of the demised premises. They, however, admitted the factual aspect of the matter about raising the construction in the demised premises.

The learned Subordinate Judge dismissed the application of the landlords for interim stay by holding that the tenants have every right on the basis of the rent note to construct building on the demised premises and the report of the Local Commissioner clearly proves that the tenants had already constructed two rooms about two years prior to the present controversy.

In appeal, the learned Additional District Judge vide his impugned order restrained the tenants from raising further construction by holding that the terms and conditions of the rent note could not be operative after the expiry of the contractual period of tenancy and that the tenancy would be governed by the statutory provisions of the East Punjab Urban Rent Restriction Act, 1949 (hereinafer referred to as the Act)

Mr. M. S Sullar, learned Counsel for the Petitioners by relying upon Ujagar Singh v. Prem Kumar (1986) 89 P.L.R. 509; Ratanlal Chandi Prasad Jalan and Ors. v. Rani ram Darkhan and Ors. 1986 (1) R. C. R. 499: and Registered Firm M/s Bhagwan Singh and Company through its Registered partner Kartar Singh, Kurukashetra v. The Central Bank of India Branch at Kaithal through its Manager (1988) 93 P. L R. 290, contended that the terms of contractual tenancy would continue enuring for the benefits of the tenants after the expiry of the tenancy unless the same are against the statutory provisions of the Act. He further maintained that the demised premises having been taken on rent for running a factory also entitled the fixing of different machines after making a temporary construction for its shelter.

Mr. H. L Sarin, Senior counsel for the Respondents raised a preliminary objection about the maintainability of this revision petition besides contending that the rent note being a leave deed cannot be taken into consideration for assessing the terms of tenancy due to its non registration u/s 107 of the Transfer of Property Act. In support of his contention, be has relied upon Chooth Ram v. Shri Deep Chand Jain and Anr. (1977) 79 P.L.R. 243; Mulkh Raj v. Amar Nath and Ors. (1985) 88 P.L.R. 130 and Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, .

In reply the learned Counsel for the Petitioner contended that this rent note had been relied upon by the Respondents themselves in the parent suit and thus they cannot be allowed to approbate and reprobate in the same breath.

There is no dispute about the legal position that the High Court could exercise revisional jurisdiction under the provisions of Section 115(1) of the Code of Civil Procedure, if any Court subordinate to such High Court had exercised jurisdiction not vested in it by law or to have failed to exercise jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The proviso appended to this Section further circumscribes the revisional powers of the High Court to vary or reverse any order if it would result in finally disposing of the suit or other proceedings or if the order is allowed to stand, it would occasion failure of justice or cause irreparable injury to the party against whom it was made.

In the present case, admittedly on the main question of fact and law the first appellate Court had come to a wrong conclusion about the terms and conditions of the contractual tenancy having come to an end after the expiry of the contractual period. The Division Bench of this Court in M/S Bhagwan Singh''s case (supra) have held that the terms of the rent deed which do not contravene any provisions of the Rent Act would govern the relationship of landlord and tenant between the parties even after the contractual period of tenancy. This view was again reiterated by this Court in Dalip Chand v. Rajinder Singh CO (1986) P.L.R. 497. The Full Bench of the Bombay High Court in Ratanlal Chandi''s case (supra) had also taken a similar view by holding that right of sub leasse of the premises given to a tenant under the rent note would continue even after the termination of the contractual tenancy. Thus, there is absolutely no doubt about the maintainability of this revision petition as the misconception of law on the part of the first appellate Court had certainly resulted in grave miscarriage of justice in the present case by restraining the Respondents from effective enjoyment of the tenanted premises on the basis of the terms of the rent note. This conclusion is further fortified from the provisions of Section 10 of the Act, providing that the landlord could not restrain the tenant from enjoying the amenities.

Admittedly, the Plaintiff-landlords have based their parent suit for permanent injunction on the basis of the above referred rent note but they tried to make out a case that after the expiry of the contractual period of this tenancy, the tenants are not entitled to make any further construction on the property in dispute. At this stage, when the parties have yet to lead evidence in order to prove whether the said rent note is a lease deed or simply a rent note or a memorandum of the terms of tenancy which came into force on 1.11.1978 though the deed was executed on 19 11.1978. I fail to subscribe to the contention of the learned Counsel for the Respondents, even though there is no dispute about the legal position that in view of the provisions of Sections 107 of the Transfer of Property Act, a lease deed of immovable property from year to year, or for any term exceeding one year and reserving a yearly rent, being a compulsorily registrable document, cannot be used for assessing the terms of the lease being unregistered as held by this Court in Cheoth Ram''s case (1977) 79 P.L.R. 243. (supra).

Moreover, the balance of convenience as well as the test of irreparable loss and injury lies more in favour of the tenant than the landlords especially when the tenant will remove all their construction from the premises in dispute at the time of delivery of its possession to the landlords. It is the admitted case of the parties that ejectment proceedings on similar grounds are pending before the Rent Controller under the relevant provisions of the Rent Act.

For the foregoing reasons, the impugned order of the first appellate Court being not legally sustainable is hereby set aside by accepting this revision and restoring the order of the trial Court. The parties are, however, left to bear their own costs in view of the peculiar circumstances of the case.