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1963 DIGILAW 114 (PAT)

Mahendra Prasad Gupta v. Sitaram Singhania

1963-09-30

S.H.S.ABIDI, S.SARWAR ALI

body1963
JUDGMENT : S. Sarwar Ali, S.H.S. Abidi., JJ. In this writ application the petitioners pray for the quashing of the ORDER :of the Sub ordinate Judge, Bhagalpur, copy where of is Annexure 3' to this writ application. This ORDER :has been passed in the purported exercise of powers 'under section 15(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, hereinafter referred to as "the Act". Under the impugned ORDER :the petitioners were directed to vacate the disputed premises within 60 days of the ORDER :. Compensation by way of damages was also ORDER :ed. 2. The relevant facts may now be shortly stated. On 15.12.1943 one Nirmal Chandra Guha leased out the premises in question for five years. Before the expiry of the said period of lease, N.C. Guha sold the holding in question to Paliram Singhania, who purchased in the names of two Sons. On 10.l2.46 there was a fresh lease between the purchasers aforesaid and petitioner no. 1 and his brothers for a period of eleven years. On 18.10.57 a fresh lease was executed for a period of eleven years. On 14.11.68 an application was filed by the lessors under section 15(2) of the Act before• the Muasif, 2nd court, Bhagalpur, Praying that the lease be terminated after 30.11.68. This gave rise to Miscellaneous Case No.206 of 1968. While the said miscellaneous case was pending, a fresh lease was executed between the parties on 5.3.1969. This was also for a period of eleven years with a renewal clause reference• whereto shall be made later. On 14.3.69 On an application filed by the parties before the learned Munsif, the following ORDER :was passed. "A petition of compromise duly signed by the parties and three lawyers filed praying that the compromise be recorded and the case be disposed of in terms thereof. Let the case be disposed of in terms of the compromise. The petition of compromise shall form part of the decree." The petition for compromise stated that the applicants to that petition had agreed to take on lease the suit premises on relit for a fixed period of eleven years expiring on 30.11.79. It was further staled that the opposite party to that application had already executed a deed of lease in terms of the compromise. It was prayed that the compromise be recorded and the case be disposed of in terms of the compromise. It was further staled that the opposite party to that application had already executed a deed of lease in terms of the compromise. It was prayed that the compromise be recorded and the case be disposed of in terms of the compromise. On 1.10.79, respondents 1 and 2 gave notice under section 106 of the Transfer of Property Act. On 15.12.79 to petition was filed before the Subordinate Judge, Bhagalpur, giving rise to Miscellaneous Case No. 175 of 1979, which is the subject matter of this writ application• The application before the Subordinate Judge purported to be under section 15 (3) of the Act for the eviction of the opposite party to that application from the disputed premises, details where of have been given in the petition as also in the ORDER :of the learned Sub ordinate Judge. 3. Learned counsel for the petitioners contended that the application before the Learned Subordinate Judge was misconceived and the learned subordinate Judge had no power or jurisdiction to pass the impugned ORDER :. In ORDER :to appreciate the argument, it would be necessary to refer to section 15 of the Act, which is a follows: "(1) If a tenant in possession of any building held On a lease for a specified period, intends to extend the period limited by such lease, he may give the landlord at least one month before the expiry of the period limited by the lease, a written notice of his intention to do so and upon the delivery of such notice the said time shall subject to the provisions of section 12 be deemed to have been extended by double the period covered by the original lease subject to a minimum of one year. (2) Where the landlord to whom a notice has been given under sub-section (1) wishes to object to the extension demanded by the tenent on one or more of the grounds mentioned in sub-section (1) of section 12 or on the ground that the landlord has any other good and sufficient cause for terminating the lease on the expiry of period limited 'thereby, he may, within fifteen days of the 'delivery of such notice, apply to the Court in that behalf and the Court after hearing the parties may terminate the lease or extend the same for such period as it deems proper in the circumstances: Provided that the tenant shall not in any case be allowed to remain in possession of the building beyond the period permissible under subsection (1). (3) If the tenant fails to vacate the building on the termination of the lease or as the case may be on the expiry of the period fixed by the Court under sub-section (2), the Court shall, on an application by the landlord, pass an ORDER :for ejectment which shall be executed as a decree and may further ORDER :that the tenant shall pay to the landlord such amount as may be determined by it as daily compensation." Learned counsel for the petition en Contended that if a tenant in possession of any building wants to get the period of lease extended in accordance with provisions of section 15 (1), he has to give a written notice of his intention to do so at least One 'month before the expiry of the period limited by the lease. Unless that is done, neither sub-section (2) nor sub-section (3) is attracted. It is only when notice, as Envisaged under section 15 (1), is given that the Court has the power to decide whether the lease should be terminated or extended. After deter ruination is wade under sub-Section (2) and the tenant fails to vacate the building on the termination of the lease or expiry of the period fixed by the Court under subsection (2) that the Court On application by the landlord may pass an ORDER :of ejectment. 4. In the instant case it 1s clear that the tenants had not given my written notice, as envisaged under section 15 (1), to the laud lord for extension of the period of lease. 4. In the instant case it 1s clear that the tenants had not given my written notice, as envisaged under section 15 (1), to the laud lord for extension of the period of lease. A clear averment to that effect has been decided in the counter affidavit that has been filed in this court. It would be consider whether the contention raised by the petitioner on this aspect of the matter is correct. 5. Annexure 1 is the application that has been filed by the landlord before the learned Subordinate Judge In that application we do not find any clear averment to the effect that any notice as contemplate under section 15 (1) of the Act has been given. It wall, therefore, contended by the learned counsel for the petitioners that in view of the absence of a clear averment to the effect aforesaid, it was not open to the respondent to contend that notice had in fact been given. There is substance in this connection. In any event, on the examination of the materials on the record, we find that the factual assertion made by petitioners is correct. Learned counsel for the respondents drew our attention Annexure 'C' a notice given by the petitioners to respondents 1 and 2. On the basis of this notice it was contended that there has been fulfillment of the requirement under section 15 (1) of the Act. A perusal of the notice would, however, make it clear, that the notice was being given on the basis of the terms of the lease and not on the basis of the right as may be available to a ten ant under section 15 (l) of the Act. This is clear from the reading of the notice itself. Reference at this stage may be made to the terms of the lease which is Annexure 'C' to the counter-affidavit. Paragraph 11 of the lease is a stipulation in relation to the extension of the period of lease in the circumstances as mentioned in that paragraph. In view of the presence of this stipulation it is 'legitimate to infer that the notice (Annexure 'C') was in pursuance of the purported exercise of option as given in clause 11 of the leas aforesaid 6. In view of the presence of this stipulation it is 'legitimate to infer that the notice (Annexure 'C') was in pursuance of the purported exercise of option as given in clause 11 of the leas aforesaid 6. Learned counsel for the respondents contended that the application filed before the learned Subordinate Judge was maintainable in view of the ORDER :that has been passed in Miscellaneous Case No. 206 of 1968. That should be taken to be all ORDER :under section 15 (2) of the Act. Consequently an application under 5ection 15 (3) of the Act was maintainable before the learned Subordinate Judge. A perusal of the compromise petition (Annexure E) as also the ORDER :(Annexure F) to which reference has already been mace makes it dear that the Court was not exercising its power under section 15 (2) of the Act and extending the lease. In fact under the provisions of that section the maximum extension that was permissible was only one year. The recitals in the compromise petition and the under it self indicate that the case was being disposed of because of the compromise and the execution of a fresh lease for a period of eleven years. The contention of the respondents, therefore cannot be accepted. 7. Lastly, it was contended, that, the Court should take notice of the intervening events and on that basis refused to interfere with the impugned ORDER :. Learned counsel contended that the lease executed in the year 1969 expired on 1.12.79 and therefore, before the filing of the application at best there could be extension for one year under section 15 (1). Even if it is taken into consideration, a tenant did not have right to continue in the suit premises after 9.12.1980. In the circumstances the Court should take note of these facts and refuse to interfere as the tenants had no right to continue in the premises in question. The main difficulty or the respondents, however, is that the ORDER :of the Subordinate Judge has been passed under section 15 (3) of the Act. In view of our finding that there was no notice under section 15 (1) of the Act the power of the Court was not there to entertain any application under section 15 (3) of the Act. In view of our finding that there was no notice under section 15 (1) of the Act the power of the Court was not there to entertain any application under section 15 (3) of the Act. It is only where ORDER :of termination under section 15 (2) of the Act baa been passed or the period of extension as granted by the Court has expired that lection 15 (3) is attract, d. Since neither of the two contingencies as mentioned above were present in this case, the Subordinate Judge did not have power to entertain the application and pass ORDER :s of eviction on the basis of the application made before it. In the absence of the power to entertain and adjudicate on the application filed before the learned Subordinate Judge, it is difficult to hold that this court should not interfere even though an ORDER :has been palled by an authority which had no 'power to pass the impugned ORDER :. 8. In the result, this application is allowed and the ORDER :contained in Annexure 3' to the application is quashed. In the circumstances, 'there will be no ORDER :as to costs. 9. We had adjourned this case on several dates in ORDER :that the parties may come to term and compromise their differences. Unfortunately, they have not been able to come to terms. It is obviously in the interest of both the parties that they should come to some compromise as otherwise it would mean another round of litigation. However, if the parties do not Come to terms and a suit is filed by the respondents for the eviction of the petitioner it should be disposed of as early as possible, preferably within a period of six months from the date of the filing the suit. Application allowed.