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Uttarakhand High Court · body

2003 DIGILAW 317 (UTT)

Kishan Lal Agrawal v. National Insurance Co. Ltd.

2003-12-24

RAJESH TANDON

body2003
JUDGMENT Heard learned counsel for both the parties. 2. By the present revision under Section 25 of the Provincial Small Cause Court Act, the plaintiff/applicant has prayed for quashing of the order dated 26.09.2000 passed by the Judge Small Cause Court/District Judge, Pauri Garhwal by which the suit of the plaintiff has been dismissed. 3. Brief facts giving rise to the present revision are that the plaintiff/ applicant has filed the suit in respect of the premises situate at Ambey Complex, Najibabad Road, Kotdwar, District Pauri Garhwal and the respondents National Insurance Company Limited is the tenant on the first floor consisting of one hall, one manager's room, one stationery room, one store-room, one balcony and two latrines on a monthly rent of Rs. 4,075/- 4. The plaintiff/applicant has stated that since 1st of July, 1997, the amount of rent has not been paid inspite of the notice sent on 16th September 1997 which was served on the defendant on 23rd September 1997. 5. The plaintiff/applicant has further stated that the premises in dispute was constructed in the year 1991. The plaintiff has submitted that since the premises fetching rent more than Rs. 2,000/- per month the same is not covered under U.P. Act No. 13 of 1972. 6. The defendant/respondents have filed their written statement. In paragraphs 18 and 19 of the written statement, the defendant has submitted that if the Rent Control Act is not applicable to the premises in dispute, the suit was liable to be tried by the competent court and not by the Judge Small Cause Court. So far as the rental is concerned, there has been no denial on the part of the defendant in the written statement. 7. Admittedly, therefore, the Rent Control Act No. 13 of 1972 is not applicable to the building in dispute by virtue of Section 2(g) of Act No. 13 of 1972, which was enforced by way of the amendment to the Act No. 13 of 1972. 8. The Judge Small Cause Court has framed as many as three issues. So far as the issues Nos. 1 & 2 are concerned, a finding has been recorded by the Judge Small Cause Court, that the rent of the premises is 4,075/- and, as such U.P. Act No. 13 of 1972 has no application in the present case. The said findings are quoted below :- 9. So far as the issues Nos. 1 & 2 are concerned, a finding has been recorded by the Judge Small Cause Court, that the rent of the premises is 4,075/- and, as such U.P. Act No. 13 of 1972 has no application in the present case. The said findings are quoted below :- 9. The defendant/respondent have not challenged the aforesaid findings and the findings on issue No.1 regarding non-applicability of the Act No. 13 of 1972 has already become final. 10. So far as the issue No.2 is concerned, the judge Small Cause Court has recorded a finding that the defendant has not paid the amount of rent after the receipt of the notice. The said findings are also finding of fact. The same are quoted below :- 11. While deciding issue No.3 the Judge Small Cause Court has given the benefit of Section 114 of the Transfer of Property Act. On the applicability of Section 114 of the Transfer of Property Act, it cannot be made applicable to the present case in as much as Section 114 of the Transfer of Property Act is applicable where the lease has been determined on the basis of the forfeiture alone. APPLICABILITY OF THE ACT 12. Section 2(g) as amended by U.P. Act No. 13 of 1972 reads as under:- "2. Exemptions from Operation of Act - (1) Nothing in this Act shall apply to the following namely. (g) any building, whose monthly rent exceeds two thousand rupees." 13. The rent of the premises in question is more than Rs. 2,000/- per month. Act has no application at all. The landlord has clearly stated in his plaint in paragraph-5 to the following effect :- 14. In view of the aforesaid facts and circumstances, since Act No. 13 of 1972 is not applicable, therefore, the suit has rightly been dismissed by the Judge Small Cause Court for recovery of possession. 15. In U.P. Co-operative Bank Ltd, Lucknow Vs. Smt Urmila Singh reported in 1999 (1) Allahabad Rent Cases, page 408 it has been held as under :- "7. I have considered the submissions made by the learned counsel for the parties and perused the record. The Act was amended by U. P. Act No. 5 of 1995. By means of the said amendment, clause (g) of sub-section (1) of Section 2, which reads as under :- 2. I have considered the submissions made by the learned counsel for the parties and perused the record. The Act was amended by U. P. Act No. 5 of 1995. By means of the said amendment, clause (g) of sub-section (1) of Section 2, which reads as under :- 2. Exemptions from operation of Act- (1) Nothing in this Act shall apply to the following, namely:- (g) any building, whose monthly rent exceeds two thousand rupees. 8. From the reading of the aforesaid provision, it is apparent that the buildings the rent of which was more than rupees two thousand per month were exempted from the operation of the Act. Clause (c) of Section 3 of Delhi Rent Control Act is analogous to clause (g) of sub-section (1) of Section 2 of the Act, which reads as under:- 3. Act not to apply to certain premises :- Nothing in this Act shall apply; (a)……... (b)…….. (c) to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees; or (d)………… The validity of clause (3) of Section 3 came to be considered by the Apex Court in D. C. Bhatia and others v. Union of India and another, 1994 SCFBRC 421 : (1995) 1 SCC 104). The Apex Court after considering all relevant aspects of the matter was pleased to rule that the said clause was not violative of Article 14 of the Constitution of India and was quite valid. It was held as under:- In the facts of the case we are not to hold that impugned Section 3 would violate Article 14 of the Constitution of India in any manner. The Court below was, therefore, right in holding that the provisions of the Act were not applicable to the building in question, inasmuch as admittedly rate of rent of the building in question was Rs. 8,000 per month." 16. Apart from Section 2(g) of Act No. 13 of 1972, the landlord has stated that the premises in question was constructed in the year 1991, the suit having been filed in the year 1997, the said premises, therefore, being outside the purview of Act No. 13 of 1972 in view of the judgment of the Apex Court in Atma Ram Mittal Vs. Ishwar Singh Punia reported in SCFBRC 1988 page 549. Ishwar Singh Punia reported in SCFBRC 1988 page 549. The observations are quoted below:- " ……….It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curiae neminem gravabit"- An Act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 1 a years exemption or holiday from the application of the Rent Act would become illusory, iftiJe-su1t has to be filed within that time and be disposed soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years of holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortage of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. ......... We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reason. In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed .of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law.” 17. Since the premises is not governed under U.P. Act No. 13 of 1972, therefore, suit has been illegally dismissed by the Judge Small Cause Court. APPLICABILITY OF SEC. 111 OF THE T.P. ACT 18. Section l11.(g) provides mode of determination of lease. Once rights crystalise the adjudication must be in accordance with law.” 17. Since the premises is not governed under U.P. Act No. 13 of 1972, therefore, suit has been illegally dismissed by the Judge Small Cause Court. APPLICABILITY OF SEC. 111 OF THE T.P. ACT 18. Section l11.(g) provides mode of determination of lease. Clause (g) reads as under :- "(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may reenter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.” APPLICABILITY OF SEC. 114 OF THE T.P. ACT 19. So far as the Section 114 and 114-A of the Transfer of Property Act is concerned, it is not applicable in the present case. Section 114 of the Transfer of Property Act reads as under :- "114. Relief against forfeiture for non-payment of rent.- Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.” 20. Since there is no forfeiture as alleged by the defendant, therefore, there is no application of Sec. 114 of the Transfer of Property Act. 21. Further, neither there is a lease deed containing any forfeiture clause, nor there is any averment in the written statement to that effect, as such, no benefit can be claimed by the defendant under Section 114 of Transfer of Property Act. 22. 21. Further, neither there is a lease deed containing any forfeiture clause, nor there is any averment in the written statement to that effect, as such, no benefit can be claimed by the defendant under Section 114 of Transfer of Property Act. 22. The revision is also covered by the judgment of the Uttaranchal High Court reported in 2003 (2) ARC 290* where this Court has taken view to the following effect :- "24. In the case Shiv Shankar Vs. Additional District Judge reported in 2002 (1) ARC 13, it has been held that Section 114 of Transfer of Property Act is applicable only where the lease of immovable property has been determined by forfeiture. Relevant observations of Allahabad High Court are quoted below:- Section 114, Transfer of Property Act quoted above, gave an option to a period mentioned in this section. In the case of forfeiture only the expression used in the said Section 114, Transfer of property Act, "Where a lease of immovable property has been determined by forfeiture"………… Leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of immovable property determines by forfeiture and not otherwise. Consequently, defendant petitioner cannot take advantage of the aforesaid Section 114, Transfer of Property Act in a case where lease of a transferee determine only itself or to quit the property leased, duly given by one party to the other, as contemplated under Section 111 (h) of Transfer of Property Act. 26. The Counsel for the respondent has referred the judgment of Allahabad High Court Surjeet Singh V. Addl. District Judge, Hardwar, 1993 (2) ARC 470, the case law is wholly inapplicable in as much as already stated above the lease agreement was wholly inapplicable for want of registration as well as for want of any forfeiture clause in the agreement. The case of Surjeet Singh (supra) has further been distinguished in Mohamad Nasir v. District Judge, Nainital and others 1999 (1) ARC 202. The case of Surjeet Singh (supra) has further been distinguished in Mohamad Nasir v. District Judge, Nainital and others 1999 (1) ARC 202. In the case of Mohd Nasir (supra) it has been held as under :- In order to claim benefit under this Section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided under Section 111 (g). Section 114 T.P. Act thus postulates existence of determination of lease by forfeiture as a condition precedent and provisions contained in this section will have no application where the lease has been determined by serving a notice to quit under Section 106 T.P. Act. The relief under Section 114 T.P. Act is confined to those cases only which are strictly covered under Section 111(g) and not to those cases which fall under Section 106 T.P. Act. A monthly tenancy is determinable by one month's notice by either party and if the tenancy is terminated by serving one month's notice under Section 106 T.P. Act, there is no forfeiture of tenancy and in that event Section 114 cannot be applied. Thus a notice under Section 106 T.P. Act by no means could be treated as one under Section 111(g). 27. In Surendar Kumar v. A.D.J. Nainital 2002 (2) ARC 106, the case of Surjeet Singh (supra) has been distinguished. The observations in the case of Chandra Sekhar Prasad v. Special Judge Balia and other, 2000 (2) ARC 160, are quoted below: Section 114 of the Transfer of Property Act is applicable when three conditions are satisfied, Firstly there is an agreement of lease between the parties, secondly there is a condition in the lease deed that the lease will be forfeited if the rent is not paid to the lessor in accordance with the conditions mentioned in the lease deed and thirdly the lease is forfeited by the lessor on the ground that the lessee has not complied with the terms of payment of rent as contained in the lease deed. Learned Counsel for the petitioner has placed reliance upon the decision Surjeet Singh v. Addl. Learned Counsel for the petitioner has placed reliance upon the decision Surjeet Singh v. Addl. District Judge, Haridwar and others, 1994 AWC 17: 1993 (2) ARC 470, where the Court granted relief against eviction where the tenancy was forfeited on the ground on nonpayment of rent. This case has no application, as in this case there was an agreement of forfeiture of lease on the ground of non-payment of rent. 29. In the case Mohd. Nasir v. District Judge, Nainital question of notice was also considered and relying upon the judgment of Apex Court it has been held as under :- The mere fact that while terminating the tenancy under Section 106 of the T.P. Act the landlord also made demand of arrears of rent and possession will not convert the notice as one given under Section 111(g). For this view I am supported by a Supreme Court decision in the case of Tharumal and another v. Masjid Hajum Pharsoan v. Madrassa alimulislam, Mirza Ismail Road, Jaipur (1994) 3 SCC 375 :1994 SCFBRC 265. 31. Similarly in Ram Bali Pandey v. 2nd Addl. District Judge, Kanpur, 1998 (2) ARC 362, it has been held that for the applicability of Section 114, the existence of an agreement containing a stipulation empowering the landlord to re-enter is essential. Relevant observations are quoted below:- For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 T.P. Act serving a notice there under. The mere fact that the notice stated about non payment of rent also besides by exercising the power under clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T. P. Act and not under Section 111 (g) of the T. P. Act then provision of Section 114 of the T.P. Act, cannot be attracted. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T. P. Act and not under Section 111 (g) of the T. P. Act then provision of Section 114 of the T.P. Act, cannot be attracted. Thus in absence of any stipulation with regard to re-entry, in my opinion, the tenant is not entitled for the benefit of Section 114A of Transfer of Property Act and the findings of the learned Judge Small Cause Court while giving the benefit of Section 114A of Transfer of Property Act cannot be sustained. 32. Apart from the aforesaid it has been held in Vannattankandy Ibrayi, 2001 (1) ARC 325, where the reliance has been made of 1993 (3) SCC 271, it has been held that provisions contained under the Rent Control Act being a provision would exclude the operation of Section 114 of the Transfer of Property Act. The observations of the Apex Court are as under: In Prithvichand Ramchand Sablok v. S.Y. Shinde, 1993 (3) SCC 271 : 1993 SEFBRC 283, it was held that the provisions contained under the Rent Control Act being a special provision would exclude the operation of Section 114 of the Transfer of Property Act. In substance it was held that the building cannot be governed by the provisions of two Acts, one by the State Rent Act and other by the Transfer of Property Act. " 23. From the aforesaid decisions there is no doubt that if a building is not governed by the State Rent Act the tenant cannot claim, benefit of the provisions of Section 114 of the Transfer of Property Act. 24. Consequently, the revision is allowed. The impugned order dated 26.09.2000 passed by the Judge Small Cause Court/District Judge, Pauri Garhwal is quashed. 25. However, in view of the facts and circumstances, since the defendant/respondents have prayed time to vacate the premises, the defendants/respondents are allowed time till 31st March 2004 to vacate the premises in question provided undertaking is given by the defendant/respondent to vacate the premises on the following conditions:- (1) Undertaking to be given before the Judge Small Cause Court/ District Judge, Pauri Garhwal by 15th of January 2004 to vacate the premises by 31st of March 2004. (2) Rent/damages to be paid by 31st of March 2004. (2) Rent/damages to be paid by 31st of March 2004. (3) To hand over the vacant and peaceful possession to the landlord on or before 31st March 2004. (4) Violation of any of the conditions, the stay order shall stand vacated.