Dena Bank v. Gyan Kumari Jain — 1997 DIGILAW 502 (PAT)

JUDGMENT Radha Mohan Prasad, J. As both these revision applications arise out of the same order dated 6.9.1994 passed by the Munsif, 1st Court, Gaya, in Eviction Suit No. 10 of 1994, they have been heard analogous and are being disposed of by this common judgment/order. 2. In short, the relevant facts are that the eviction suit was filed on behalf of the plaintiff opposite party for eviction of the defendants petitioners from the suit premises on the ground of expiry of the fixed period of lease. 3 The admitted case of the parties is that through a registered deed of lease dated 30th December, 1980, the ground floor of Holding No. 17 (New), 15-D (Old) at Mir Abu Saleh Road, Gaya, having a carpet area of 1600 square feet, was let out to the defendant-petitioner at a monthly rental of Rs. 1600/-, i.e., at the rate of Re. 1/- per square feet. The lease was for a fixed period of ten years effective from 1.4.1981, when the possession of the building was handed over to the defendants. However, under the terms of the lease it was stipulated that the same could be renewed for a further period of five years after giving three months notice in writing before the date of expiry of the lease. 4. According to the case of the plaintiff, when no such notice was given she informed the defendants that if they were ready to execute a fresh dead of lease at the prevalent market rate at the rate of Rs. 5/- per square feet then the plaintiff would feel pleasure in renewing the tenancy for a further period of five years with effect from 1.4.1991. But the defendants did not send any reply. Further case of the plaintiff is that she issued reminders on 28.10.1991 and 30.3.1991 and also made several telephonic conversations with defendant no. 2 but of no effect. Hence the said suit was filed for eviction under Section 11 (1)(e) of the Bihar Buildings (Lease, Rent & Eviction) Control Act. 1982 (hereinafter referred to as 'the Act'). On receipt of the notice, the defendant tenant filed an affidavit and prayed for leave to contest the suit. 2 but of no effect. Hence the said suit was filed for eviction under Section 11 (1)(e) of the Bihar Buildings (Lease, Rent & Eviction) Control Act. 1982 (hereinafter referred to as 'the Act'). On receipt of the notice, the defendant tenant filed an affidavit and prayed for leave to contest the suit. In the said affidavit it was asserted that the defendant petitioner made written request to the plaintiff for the extension of lease period for further period of five years and the plaintiff herself and also through her husband agreed to renew the period of lease for the said period on enhancement of rent from Re. 1/- to Rs 120 per square feet, i.e., Rs. 1,920/- per month, but the plaintiff did not execute the lease. 5. According to the defendants, in view of the aforementioned Dial agreement, they continued to keep in possession of the suit premises as a tenant and paid the rent also which was accepted by the plaintiff. Subsequently the plaintiff started demanding higher rent at the rate of Rs. 5/- per square feet, i.e., at the rate of Rs. 8.000/- per month to which the defendants did not agree. Hence, according to them, the suit filed by the plaintiff on the ground of expiry of the fixed period lease is not maintainable in law. 6. The learned Munsif by the impugned order refused to grant leave to the petitioners to contest the suit and on the same day by the same order directed the petitioners to vacate the suit premises. 7. The learned Munsif did not accept the plea of oral agreement and, accordingly declined to grant leave to the defendants to contest the suit. It has been held that even according to the case• of the defendants, the lease was agreed to be extended at the rate of Rs. 1.20 per square feet per month, but they did not deposit the same even as per the said rate. It has thus been found that the story of acceptance of extension of lease orally by the plaintiff as propounded by the defendants is baseless and, accordingly the learned Munsif did not find any prima facie ground which would entitle the defendants to contest the suit. 8. Mr. It has thus been found that the story of acceptance of extension of lease orally by the plaintiff as propounded by the defendants is baseless and, accordingly the learned Munsif did not find any prima facie ground which would entitle the defendants to contest the suit. 8. Mr. Chatterji, learned counsel appearing for the petitioners submitted that in the facts and circumstances of the case, the learned court below was not justified to in refuse to grant leave to the defendant to contest the suit on the sale ground that the amount paid to the plaintiff as rent for the period after the expiry of the original lease was not as per the oral agreement. This was the matter of evidence which would have been led at the time of trial but for the same leave to contest the suit could not have been legally denied by the court below. In this regard he placed reliance on a decision of the Supreme Court in the case of Charan Dass Duggal vs. Brahma Nand, reported in (1983) 1 SCC 301 . 9. On the other hand, it was submitted by the learned counsel for the apposite party that the entire claim of the defendant for renewal of the lease is based on oral agreement which was not stipulated in the terms of agreement itself. According to the terms of agreement, defendant no. 1 should have given three months notice before the expiry of the original lease which is not their case. According to the learned counsel for the plaintiff opposite party, the main case of the defendants in the affidavit is that the plaintiff by accepting the monthly rental for the lease hold premises after the expiry of original period of lease has legally accepted the tenancy of the defendants through defendant no. 8 and, as such they were not liable to be evicted from the said premises under Section 11 (1)(c) of the Act It was, thus, submitted that in any view of the matter, now even the alleged period of five years has, admittedly, elapsed and, as such, the defendants petitioners are not entitled to continue in the premises thereafter for any further period now. 10. Mr. 10. Mr. Chatterji, learned counsel for the petitioners, in reply, submitted that by virtue of the fact that the plaintiff continued to accept the rent, the defendants petitioners became entitled to continue in the premises, as month to month tenant. 11. I do not find any substance in the submissions of Mr. Chatterji. The principle laid down in the case of Charan Dass Duggal (supra) has got no application to the facts of the present case. The Supreme Court in the said case held that when leave to defend is sought, the tenant must make out such a prime facie case raising such pleas that a triable issue would emerge. The test is the test of a triable issue and not the final success in the action. At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. 12. In the present case, the admitted facts are that the entire claim of the defendants petitioners for renewal of lease is based on oral agreement which was not stipulated in the terms of the agreement nonetheless under the terms of the agreement the defendants were required to give three months notice before the expiry of the date of original lease. It is not the case of the defendants that they gave any such notice three months' prior to the expiry of the original lease. Their only case in the affidavit is that they made a written request for extension of the period of lease for a further period of five years and the plaintiff herself and also through her husband agreed to renew the period of lease on enhancement of rent from Re. 1/to Rs. 1.20 per square feet. 13. Thus, on the said facts it is, prima facie, difficult to hold that the defendants petitioners were legally entitled to continue in the premises as tenant under the lease. Under section 11 (1)(e) of the Act, the decree for eviction is to be passed on the expiry of the period of tenancy in the case of the tenant holding on a lease for a specified period. The opposite party did not bring any lease/agreement extending it for a further period of five years on the record. Under section 11 (1)(e) of the Act, the decree for eviction is to be passed on the expiry of the period of tenancy in the case of the tenant holding on a lease for a specified period. The opposite party did not bring any lease/agreement extending it for a further period of five years on the record. As such, the very basis was missing for contesting the suit. Further, I find that the learned court below has rightly held that the case of the defendants of oral extension of lease by five years was not acceptable as on their own case as the amount of rent at the rate of Rs. 1.20 per square feet was even not deposited for the alleged extended period. 14. I do not find any substance in the last submission of Mr. Chatterji as well that the defendants petitioners became entitled to continue in the premises on the basis of month to month tenant. A Full Bench of this Court in the case of Digambar Narain Chaudhary vs. Commissioner of Tirhut Division and others, reported in AIR 1959 Patna 1 (FB) held as follows : "The renewal of a tenancy by application of S. 116 of the Transfer of Property Act takes place only when there is no agreement to the contrary. If there is an agreement the acceptance of rent after determination of the lease will not give rise to a renewal of tenancy. In the case of leases to which the Bihar Buildings Lease, Rent and Eviction Control Act applies there is a statutory bar to the automatic renewal even if there is no agreement to the contrary in the lease itself. Under that Act the tenant can extend the lease only by serving a notice upon the landlord as required by S. 12 of that Act. That being so the mere acceptance of the rent in the absence of such notice will not bring about a renewal. In that respect the provisions of S. 116 of the Transfer of Properly Act must be deemed to be cut down by the special provisions of the Tenancy Act." 15. According to the case of the defendants petitioners themselves, the oral extension of lease as alleged was granted only for five years. In that respect the provisions of S. 116 of the Transfer of Properly Act must be deemed to be cut down by the special provisions of the Tenancy Act." 15. According to the case of the defendants petitioners themselves, the oral extension of lease as alleged was granted only for five years. Thus, it is not their own case that there was no agreement which would attract the provisions contained in Section 116 of the Transfer of Property Act in case of acceptance of rent by the plaintiff opposite party. In the aforementioned case, the Full Bench of this Court held that if there is any agreement, the acceptance of rent after determination of the lease will not give rise to renewal of tenancy. In any view of the matter, it has rightly been submitted by the learned counsel for the opposite party that now even the alleged extended period of five years has admittedly expired and, as such, the petiti0ners cannot be held to be entitled to continue in the premises thereafter for any further period now. 16. Under such circumstances, I do not find any reason to interfere with the impugned order and the revision applications are, thus, dismissed. The defendants petitioners are directed to give vacant possession of the suit premises to the plaintiff within three months. 17. However, Mr. Chatterji, learned counsel appearing for the petitioners submits that the petitioners may be given liberty to approach the opposite party for fresh lease and an observation may be made that this judgment/order may not come in the way of the parties in entering into a fresh lease. In my opinion, such observation is not required. It goes without saying that despite this judgment/order, the parties can enter into a fresh agreement and the defendants petitioners can be allowed to continue in the suit premises as per fresh tenancy.