C. P. Dhawan v. Kamal Kumar Kapoor — 1978 DIGILAW 581 (ALL)

JUDGMENT M. P. Saxena, J. 1. THIS is defendant's revision application against the judgment and order dated 12-3-1977 passed by the learned Additional District Judge, Kanpur. 2. IN brief the facts are that House No. 15/238 Civil Lines, Kanpur, originally belonged to Sri Ram Lal Kapoor. It was let out to the defendant-revisionist on a rent of Rs. 93.75 per month. On 31-7-1955 Sri Ram Lal Kapoor executed a permanent lease of this house in favour of his son, the plaintiff-opposite party. The latter demanded rent by means of notices dated 25-9-1970 and 19-5-1971 but the defendant failed to pay it within one month from the receipt of notices. His tenancy was also terminated by means of the second notice. On 24-1-1972 the plaintiff-opposite party filed a suit for ejectment of the defendant from the said premises; recovery of Rs. 1,693.73 as arrears of rent and Rs. 1,030/- as damages and pendente lite and future damages at the rate of Rs. 5/- per day. The defendant contested that suit, inter alia, on the grounds that the plaintiff alone had no right to sue because after the death of Sri Ram Lal Kapoor his widow, two sons and two daughters became the owners of the house; that he had paid rent to the plaintiff alone for all the landlords; that the plaintiff alone had no right to give notices; that he had sent a cheque of Rs. 1,125/- to the plaintiff on 26-6-1970 in respect of the rent due upto 31-1-1971 and, as such, no rent was in arrears on 25-9-1970 when the first notice of demand was given by the plaintiff; that in July 1971 he paid Rs. 1500/- to the plaintiff's mother and she promised to adjust it towards rent and rent upto 31-5-1971 stood paid and he was not liable to ejectment. 3. THE learned trial court negatived all the contentions of the defendant and decreed the suit. Pendente lite and future damages were awarded at the rate of Rs. 5/- per day. 4. THE defendant filed a revision and the learned Additional District Judge concurring with the findings of the learned trial court, dismissed it with costs. The defendant has come up in revision to this Court and reiterated his pleas. Pendente lite and future damages were awarded at the rate of Rs. 5/- per day. 4. THE defendant filed a revision and the learned Additional District Judge concurring with the findings of the learned trial court, dismissed it with costs. The defendant has come up in revision to this Court and reiterated his pleas. In the first place, it is argued that after the death of Sri Ram Lal Kapoor his widow, two sons and two daughters became owners of the house and the plaintiff alone was not entitled to give notice or file that suit. It has also been urged that the permanent lease in favour of the plaintiff was void because it contravened Section 7 of U. P. Act III of 1947 and was void under Section 23 of the Contract Act. The learned lower revisional court has discussed this aspect of the matter at great length and has rightly held that the lease deed in favour of the plaintiff was not hit by Section 7 of Act III of 1947 nor it was void under Section 23 of the Contract Act. I find no satisfactory reason to disagree with him. Section 109 of the Transfer of Property Act specifically lays down that if the lessor transfers any part of his interest in the property the transferee shall have all the rights of the lessor as against the lessee so far as their relations inter se are concerned. A lease is a transfer of interest or part of interest in the demised property. Therefore, the lease deed dated 31-7-1955 is also a transfer within the meaning of Section 109 of the Transfer of Property Act. 5. THE effect of creating a subsequent lease in perpetuity is to confer upon the subsequent lessee a right of reversioner as against the previous lessee who is a tenant at will. The rights of the lessor to terminate the lease of the previous lessee who is a tenant at will and to file a suit for ejectment against him are available to the subsequent perpetual lessee in accordance with Section 109 of the Transfer of Property Act. This principle has been recognised in a number of cases. The rights of the lessor to terminate the lease of the previous lessee who is a tenant at will and to file a suit for ejectment against him are available to the subsequent perpetual lessee in accordance with Section 109 of the Transfer of Property Act. This principle has been recognised in a number of cases. In M. Pillai v. R. Nather, (1918) Indian Cases 210 (Madras) it was held that the words "all the rights" in Section 109 of the T. P. Act include the right to recover possession by terminating the tenancy of a previous lessee. It was further held that the rule of English law that the person entitled to the immediate reversion of the demised premises is the proper person to give notice to quit is applicable to India and the provisions of the Transfer of Property Act are not inconsistent with this rule. 6. IN Prabhu Ram v. Tek Chand, 1919 Indian Cases 865-Lahore it was held that the words "transferee of any interest" in Section 109 of the T. P. Act include the term 'lessee'. In Bhogi Lal and Dabay v. S. R. S. Ayer, AIR 1954 Madras 514 it was held that a lease can be a transfer of part of interest in the property as contemplated by Section 109 of the T. P. Act and thereon the transferee gets all the rights of transferor and to the part so transferred. 7. IN Ram Das v. Lachman Janki, 1961 AWR 510 this Court also observed that a transferee from the lessor shall possess all the rights as lessor as to the property or the part transferred so long as he is the owner of it and such rights include the right to give notice in writing to the lessee of intention to determine the lease and ask the lessee to quit the property. The same principle was enunciated in B. D. Sharma v. Director Public Instructions, AIR 1965 Assam 52. The case of Raja Vijai Singh Dudhauria v. S. N. Singh, AIR 1928 PC 234 does not help the revisionist. Therefore, there can be no manner of doubt that on the basis of this document the plaintiff became landlord of the defendant and was competent to give notice of ejectment and to file a suit. 8. The case of Raja Vijai Singh Dudhauria v. S. N. Singh, AIR 1928 PC 234 does not help the revisionist. Therefore, there can be no manner of doubt that on the basis of this document the plaintiff became landlord of the defendant and was competent to give notice of ejectment and to file a suit. 8. IT does not violate Section 7 of U. P. Act III of 1947 nor it can be held to be void under Section 23 of the Contract Act. The case can be approached from another angle of vision also. There is no manner of doubt that the house was let out by Sri Ram Lal Kapoor. He died in 1964 leaving behind the plaintiff and certain others as his heirs. Admittedly the defendant was paying rent to the plaintiff. There is not an iota of evidence on the record to show that the rent was paid to the plaintiff for the benefit of all the heirs of the previous landlord. On 25*9-1970 the plaintiff gave a notice of demand clearly asserting his right as sole landlord. This notice was admittedly not replied by the defendant. The second notice was given on 19-5-1971 and was served on the defendant on 2-6-1971. In this notice again the plaintiff asserted this right as sole landlord and claimed rent. The defendant replied it on 6-6-1971. He sent another reply on 16-6-1971 but in both of them he did not deny that the plaintiff is sole landlord or is entitled to realise rent on his own behalf. On the other hand, the defendant's contention was that he had sent a cheque to the plaintiff although the plaintiff denied it because it was not sent at the correct address and it was never delivered to him. The fact remains that even after receiving the notice the defendant was inclined to recognise the plaintiff as his landlord. The question whether any cheque was actually sent or not will be discussed at another place in this judgment. So the position as it emerges from the material on the record is that the defendant after the death of Sri Ram Lal Kapoor treated the plaintiff as his landlord, paid rent to him and alleges to have issued a cheque in his name. This conduct created the relationship of landlord and tenant between the parties. So the position as it emerges from the material on the record is that the defendant after the death of Sri Ram Lal Kapoor treated the plaintiff as his landlord, paid rent to him and alleges to have issued a cheque in his name. This conduct created the relationship of landlord and tenant between the parties. As held in the case of Jagannath v. D. J. Mathura, 1977 UPRCC 482 relationship of landlord and tenant can be created even by conduct. I am, therefore, in agreement with the learned Additional District Judge that the plaintiff alone was the landlord of the defendant. He was entitled to give notice to quit and to file a suit for ejectment. 9. ANOTHER point which has been pressed before me is that there was no default on the part of the defendant inasmuch as he had sent a cheque of Rs. 1,125/- on 26-6-1970 which was not received back by him. Again in July 1971 he had paid Rs. 1500/- to the plaintiff's mother. The evidence on both points was disbelieved by the learned lower courts, and in my judgment rightly. The cheque was not sent by registered post. According to the plaintiff, even the address at which it is said to have been sent was wrong. Therefore, the plaintiff never received it and the defendant cannot derive any advantage from it. 10. SO far as the payment of Rs. 1500/- to the plaintiff's mother is concerned, there is no written evidence in this connection. No reason is available why the defendant did not obtain a receipt from the plaintiff's mother when he was paying a fancy sum of Rs. 1500/-. The only witnesses who appeared to prove this fact were the defendant and his wife. Payment of this amount was not set up in the reply notices dated 6-6-1971 and 16-6-1971 sent by the defendant. Therefore, the lower courts were right in holding that the payment of this amount to the plaintiff's mother was not proved. It would thus be clear that the amount due was not tendered to the plaintiff within one month from the date of receipt of notices and the defendant committed default and became liable to ejectment. The defendant also claimed the benefit of Section 20 (4) of U. P. Act XIII of 1972. It would thus be clear that the amount due was not tendered to the plaintiff within one month from the date of receipt of notices and the defendant committed default and became liable to ejectment. The defendant also claimed the benefit of Section 20 (4) of U. P. Act XIII of 1972. The benefit of this section can be claimed if the tenant pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building together with interest thereon at the rate of nine percent per annum and the landlord's cost of the suit in respect thereof at the first hearing of the suit. The crucial point for consideration is as to when the first hearing of the suit should be deemed to have taken place in this case. As stated above, the suit was filed on 24-1-1972 in the court of Munsif City, Kanpur. On coming into force of the Civil Laws (Amendment) Act, 1972, it was transferred to the court of the Additional Judge Small Causes, Kanpur, and 28-11-1973 was fixed for hearing. On this date the defendant moved an application to the effect that copy of the plaint was not supplied to him and he may be granted further time to file written statement and the plaintiff be directed to supply the copy. One month's time was granted and on 1-1-1974 he appears to have prayed for further time and 28-1-1974 was fixed for final hearing. The copy of the plaint was admittedly supplied to him in the first week of January 1974 but he did not file his written statement upto 28-1-1974, the date fixed for final hearing. He filed his written statement on 29-1-1974. Therefore, in this case the first date of hearing was 28-11-73 or in any case 28- 1-74. In view of the proviso to Order V Rule 5, C.P.C. summons in Small Cause Court cases are to be issued for final hearing. As held in the case of Balmukund Agarwal v. District Judge, Rae Bareli, 1977 AWC 225 in small cause court cases it is the very first date fixed for disposal of the case when the first hearing of the suit is to take place. The allegations made in para. 19 of the written statement rob the defendant even of the benefit of Section 20 (4) of the Act. The allegations made in para. 19 of the written statement rob the defendant even of the benefit of Section 20 (4) of the Act. According to his own showing, a considerable amount was due from him. He deducted Rs. 1500/- when there is no evidence on the record to prove that he had paid this amount to the plaintiff's mother. Interest at the rate of nine percent and plaintiff's costs of the suit as contemplated by Section 20 (4) were not at all offered or deposited. There is no evidence on the record as to when the defendant had made the deposit, if any. At least it was not done upto 29- 1-1974 when the two dates for final hearing had expired. In these circumstances even the benefit of Section 20 (4) of the Act could not be given to him. 11. THE revision application is accordingly dismissed with costs to the plaintiff-opposite party. The revisionist is, however, allowed three months' time hereof to vacate the house in suit. Revision dismissed.