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2004 DIGILAW 414 (BOM)

Vithal S. Pednekar v. Urminda Mendes

2004-03-29

P.V.HARDAS

body2004
JUDGMENT By the Court.- This second appeal has been filed at the instance of the original defendant who is aggrieved by the judgment and decree passed by the Additional District Judge, South Goa, Margao, dated 4.1.1997, in regular civil appeal No. 15/1994, confirming the judgment and decree passed by the Civil Judge, Sr. Division at Vasco da Gama, dated 24.1.1994, in regular civil suit No. 13/1992, directing the appellant/defendant to vacate the suit plot along with the structure/shed and hand over vacant possession to the respondent/plaintiff. The decree of the trial Court further ordered the appellant/defendant to pay mesne profits at the rate of Rs.400/- per month from 1.9.1981 till the decision of the suit. 2. The facts, as are necessary for the decision of the appeal, may be set out as under ; The plaintiff filed regular civil suit No. 13/1982 in the Court of the Civil Judge, Sr. Division at Vasco da Gama, Goa praying that the defendant be ordered to vacate the suit plot along with the suit structure/shed and hand over free and vacant possession of the suit plot to the plaintiff. The plaintiff further prayed for grant of mesne profits at the rate of Rs. 400/- per month from 1.9.1981 till the decision of the suit. In the said suit, it was contended by the plaintiff that the plaintiff is owner of a plot of land known as "FONDEAUDDI GRANDE" situated at Mundvel, Vasco da Gama, Goa. The defendant approached the plaintiff somewhere in the month of May, 1968 for lease of 90 sq. metres of plot for the purpose of erecting a temporary shed in order to carry out automobile repair works. The plaintiff agreed to give on lease 90 sq. metres of the property for a period of 55 months on the terms and conditions mentioned in the Lease Agreement dated 24.6.1968. After the said period of 55 months ended, the plaintiff called upon the defendant to hand over free and vacant possession of the leased plot. However, the defendant did not hand over the vacant possession of the suit plot and, as the defendant had stopped paying the rent from November, 1976 onwards, the plaintiff sent a registered A/D letter dated 1.7.1979 calling upon the defendant to vacate the leased plot and to pay the arrears of rent. However, the defendant did not hand over the vacant possession of the suit plot and, as the defendant had stopped paying the rent from November, 1976 onwards, the plaintiff sent a registered A/D letter dated 1.7.1979 calling upon the defendant to vacate the leased plot and to pay the arrears of rent. In response to the said letter, the defendant requested for renewal of the agreement for a period of two years with effect from 1.10.1979. Accordingly, the lease agreement was registered on 20.1.1978. After the expiry of the period of this lease, the lease was further renewed for a period of two years effective from 1.10.1979. After expiry of the period of the said lease, the lease was again renewed by an agreement for a period of 11 months effective from 1.10.1980. The plaintiff by a letter dated 31.7.1981 informed the defendant that the period of the lease would come to an end on 31.8.1981 and called upon the defendant to dismantle the shed and give vacant possession of the plot to the plaintiff. Since the defendant did not hand over the possession, the aforesaid suit came to be filed. In the written statement filed on behalf of the defendant, it was contended that in the lease dated 24.6.1968, it was agreed that the lease would be regulated in terms of the decree No. 43525 of 7.3.1961. That decree had been substituted by the Goa, Daman and Diu Lease, Rent and Eviction Act, 1968, the provisions of which would cover the lease between the plaintiff and the defendant. It was further contended that the suit for eviction of the defendant, as med, was not maintainable as the Rent Controller alone had the jurisdiction. Alternatively, it was stated that the plaintiff had failed to comply with the mandatory provisions of Section 106 of the Transfer of Property Act as the premises were occupied by the defendant for the purpose of an industry. It was also contended by the defendant that the execution of the lease was a mere formality done by the plaintiff to help him for his taxation purpose. It was also stated by the defendant that he had signed the lease document in good faith, without knowing the contents incorporated in the lease agreement. It was also stated that there were some talks of the defendant purchasing the said property. It was also stated by the defendant that he had signed the lease document in good faith, without knowing the contents incorporated in the lease agreement. It was also stated that there were some talks of the defendant purchasing the said property. However, the plaintiff utterly delayed the fructification of sale of the property on one pretext or the other. Lastly, it was submitted that the suit had been filed in order to harass the defendant. 3. On the basis of the pleadings of the parties, the learned trial Court framed the following issues. (1) Whether the plaintiff proves that the lease agreement has been terminated and the defendant is a trespasser? (2) Whether the plaintiff proves that the defendant has violated the terms of the lease agreement by carrying on manufacturing process in the suit premises? (3) Whether the defendant proves that the terms of decreto No. 43525 of 7.3.1961 shall be deemed to cover the lease between the plaintiff and the defendant? (4) Whether the defendant proves that the plaintiff failed to comply with the mandatory provisions of Section 106 of Transfer of Property Act? (5) Whether the defendant proves that no cause of action arises and the suit be dismissed?. (6) Whether the defendant proves that the suit is not properly valued? (7) Whether the defendant proves that the plaintiff had agreed to sell the land along with the suit house to the defendant? (8) What relief? What Order ? (9) Whether the defendant proves that this Court has no jurisdiction to entertain this suit? 4. In respect of issue No.1, the learned trial Court recorded a finding that this issue was proved, while in respect of issues No. 2 to 7 and 9, the learned trial Court recorded a finding that those issues were not proved. The learned trial Court, therefore, decreed the suit of the plaintiff and ordered the defendant to vacate the suit plot by removing the structure and give vacant possession of the suit plot to the plaintiff and pay to the plaintiff mesne profits at the rate of Rs.400/- per month from the date of filing of the suit till the possession is handed over to the plaintiff. On an appeal being carried to the appellate Court, the learned Addl. District Judge, by his judgment and decree as referred to above, dismissed the appeal, leaving the parties to bear their own costs. On an appeal being carried to the appellate Court, the learned Addl. District Judge, by his judgment and decree as referred to above, dismissed the appeal, leaving the parties to bear their own costs. Accordingly, this second appeal came to be filed in this Court. 5. This Court by its Order dated 12.6.1997, admitted the appeal on the substantial questions of law as framed in paragraph 4 of the appeal memo. The substantial questions of law, as framed in the said paragraph of the appeal memo, read as under : "(i) Whether in view of the provisions of decree to No. 43525 the suit of the respondent was maintainable. when no ground for eviction of a tenant as contemplated in decreto No. 43525 was alleged, and in any case established against the appellant ? (ii) Whether the conclusion drawn by the Additional District Judge that on the expiry of the period of eleven months from the date of the execution of the last agreement for renewal dated 29.9.1980, the appellant became a trespasser, is legally maintainable, in view of the provisions of decreto No.43525 ? (iii) Whether the conclusion of the first appellate Court, that decreto No. 43525 is applicable only to leases in respect of the buildings and not leases in respect of the lands. is a conclusion contrary to the provisions of the said decreto? (iv) Whether the conclusions of the learned Courts below, that the appellant was liable to pay mesne profits at the rate of rupees four hundred per month is perverse? 6. Mr. J.P. Mulgaonkar, the learned counsel appearing on behalf of the appellant has submitted that the decree No. 43525 of 1961 would apply for determination of lease and as per Section 46 of the said decree, a lease could only be determined on the grounds which are set out in Section 46. He further states that provisions of Section 111 of the Transfer of Property Act for determination of lease by efflux of time, would not be available to the plaintiff. Mr. Mulgaonkar, in support of this proposition, has placed reliance on a judgment of the Division Bench of this Court in the case of Gangadhar Narisngdas Agrawal V. Alina D’Costa e Pinto and others, reported in 1989 (2) Goa Law Times (118). 7. Mr. Mr. Mulgaonkar, in support of this proposition, has placed reliance on a judgment of the Division Bench of this Court in the case of Gangadhar Narisngdas Agrawal V. Alina D’Costa e Pinto and others, reported in 1989 (2) Goa Law Times (118). 7. Mr. Nitin Sardessai, the learned counsel appearing on behalf of the respondent/plaintiff has submitted that the substantial questions of law, as framed, do not arise for consideration in view of the fact that the decree No. 43525 of 1961 is not applicable to the lease agreement executed between the parties. According to him, the rights, as are available to a tenant under Section 46 of the said decree, have been waived by the appellant/defendant. He has also urged that in the absence of any bar in the decree regarding waiving of the protection under the said decree, a suit for enforcement of the right seeking possession on account of the lease agreement having come to an end by efflux of time, would be maintainable. 8. In order to understand the rival submissions of the parties, it is necessary to refer to Section 46 of decree No. 43525 of 1961. Section 46 of the said decree reads as under : “Section 46. The lessor has only a right to the rescission of the agreement when the lessee: (a) Does not pay the rent within the time-limit and at the proper place or does not make a deposit thereof which the law considers as exonerative ("liberation"); (b) Makes use or permits that a third party may use the leased building for purpose or line of business different from that or those for which it is meant; (c) Gives a destination to the building, repeatedly or frequently, for illicit, immoral or dishonest practices. (d) Carries out in the building, without a written consent from the lessor, works that may alter its external structure or internal arrangement of its divisions or may cause in respect of it reasonable deteriorations, so also not permitted, which cannot be justified in accordance with Section 39; (e) Gives boarding and lodging, when that may not be the purpose for which the building was leased, to more than three persons of those defined under sub-section 2 of Section 72; (f) Sub-leases, totally or partly, the building in cases in which the sub-lease is unlawful, invalid or ineffective in relation to the lessor; (g) Violates the provision contemplated in Section 70; (h) Keeps the building which is rented for business or industry closed for more than a year, in succession, save case of force majoure or forced absence of the lessee during the period of the closure." Section 46, as reproduced, thus, contemplates a rescission of the agreement on certain grounds. Thus during the subsistence of a lease agreement the tenancy could be terminated only on the grounds as set out in Section 46 of the decree. Admittedly, Section 46 relates to rescission of the agreement. It does not contemplate a lease coming to an end by efflux of time. However, Section 57 of the decree contemplates that in case the agreement is revoked, rescinded or lapsed, and the tenant or his successors are in the enjoyment of the property for a period of one year, without any protest from other party. i.e. the landlord, the lease would be Considered to be in force as if it had not been terminated. Thus, in effect Section 57 of the decree contemplates that on a lease coming to an end by efflux of time, on certain conditions, it will be presumed that the lease is in force. Even, otherwise, an agreement which is for a specific period would come to an end by efflux of time. if not renewed or if the conditions in Section 57 exist. Therefore, Section 46 of the decree is restricted to the right of the landlord to seek eviction of the tenant during the subsistence of the lease on the grounds which are stated in Section 46. if not renewed or if the conditions in Section 57 exist. Therefore, Section 46 of the decree is restricted to the right of the landlord to seek eviction of the tenant during the subsistence of the lease on the grounds which are stated in Section 46. Thus, Section 46 of the decree would not apply to it case of a landlord seeking possession of the properly leased to a tenant after the lease had come to an end by efflux of time. 9. The Division Bench of this Court in Gangudhar Nariangdas Agrawal v. Alina D'Costa e Pinto and others, (supra) held as under : "Section 4 (1) of Regulation No. 11 of 1963 prescribes that any law in force in Goa, Daman and Diu corresponding to any Act referred to in Section 3 shall stand repealed as from the date of coming into force of such Act. The submission of Mr. Kakodkar that the Portuguese Decree stands repealed after the advent of Transfer of Property Act cannot be accepted because the rules prescribed under the Portuguese .Decree cannot be said to be a law corresponding to the Transfer of Property Act. The Portuguese Decree prescribed for regulating the relationship between a landlord and a tenant and the right was not restricted as in the case of provisions under Chapter V of the Transfer of Property Act. The Portuguese Decree provided for additional protection and indeed the protection which is available is identical as to a tenant under various Rent Acts in this country and which protection is not available to contract of lease under the Transfer of Property Act." The Division Bench, therefore, concluded that the Portuguese Decree does not stand repealed after the application of the provisions of the Transfer of Property Act. 9. In the aforesaid case, the Division Bench was not considering the eviction of the tenant after the lease had come to an end by efflux of time. In the aforesaid authority, during the subsistence of the lease, eviction of the tenant was sought for on various grounds. The Division Bench, therefore, held that the protection available to a tenant, under the said decree, would be applicable. 10. Mr. In the aforesaid authority, during the subsistence of the lease, eviction of the tenant was sought for on various grounds. The Division Bench, therefore, held that the protection available to a tenant, under the said decree, would be applicable. 10. Mr. Nitin Sardessai, the learned counsel appearing on behalf of the respondent has urged before me that the Agreement of Lease dated 24.6.1968 was for a period of 11 months with effect from 1.6.1968 and as per Clause 5, if no termination notice was served by either party before three months of the date of expiry of each term of 11 months, the lease would stand automatically renewed for a further period of 11 months. As per Clause 6 of the agreement, the agreement of lease would lapse on the expiry of 55 months and no further renewal on the strength of the contract would arise. Clause 17 of the said agreement stated that all other matters related to the lease would fall within the scope of decree No. 43525 of 7.3.1961. Fresh agreement of lease came to be executed from time to time and last such Agreement of Lease is dated 29.9.1980. As per Clause 4 of the said agreement, the renewed period of lease was for 11 months only, effective from 1.10.1980 and ending on 31.8.1981. Clause 5 gave the power to either parties for termination of the agreement by receiving notice three months in advance. In this agreement, there was no reference to the fact that the provisions of the decree would apply. Relying on the terms of the decree, it was urged before me by Mr. Sardessai, the learned counsel for the respondent that the defendant had consciously waived his right of seeking protection as was available to him under the said decree. In support of this proposition, Mr. Sardessai has placed reliance on the judgment of the Apex Court in the case of Shri Lachoo Mal v. Shri Radhey Shyam, reported in 1971 (1) SCC 619 . In support of this proposition, Mr. Sardessai has placed reliance on the judgment of the Apex Court in the case of Shri Lachoo Mal v. Shri Radhey Shyam, reported in 1971 (1) SCC 619 . The Apex Court held : ''The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy." The Apex Court further held that the agreement was not unlawful nor did the performance thereof defeat any provision of law under Section 23 of the Indian Contract Act. Section 1-A of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 did not contain a prohibition against or impose any restriction on a landlord and tenant entering into an agreement that they would not be governed by that section. Thus, the submission of Mr. Sardessai, the learned counsel for the respondent is firstly that the provisions of Section 46 of the said decree are inapplicable to the lease agreement which has come to an end by efflux of time and alternatively assuming that the protection of the said decree is available to the tenant, the tenant by the aforesaid agreement of lease has waived those protections. There is nothing in the decree which prohibits or puts any restrictions on the tenant in entering into an agreement waiving the protection available under Section 46 of the said decree. 11. In the earlier portion of this judgment. I have already held that Section 46 of the decree would not apply in respect of the agreement of lease which has come to an end by efflux of time. Section 46, in its operation, would be restricted only to cases where the landlord seeks eviction of the tenant during the subsistence of the lease. The landlord, therefore, would succeed in eviction of the tenant during the subsistence of the lease only on the grounds enumerated in Section 46 of the decree. Since in the present case. Section 46, in its operation, would be restricted only to cases where the landlord seeks eviction of the tenant during the subsistence of the lease. The landlord, therefore, would succeed in eviction of the tenant during the subsistence of the lease only on the grounds enumerated in Section 46 of the decree. Since in the present case. the agreement of lease came to an end by efflux of time and the respondent/landlord had issued a notice well before expiry of the period, calling upon the tenant to hand over vacant possession, the suit as filed by the plaintiff seeking possession of the suit plot along with the structure/shed, was maintainable. 12. With the assistance of the learned counsel appearing for the parties. I have perused the judgments of the two Courts below and according to me, the substantial questions of law as enumerated above. do not arise for consideration as the protection as provided in the provisions of decree No. 43525 was not applicable to the tenant as eviction was sought on the ground of the lease having come to an end by efflux of time. The suit was filed on the notice issued well before the expiry of the period of lease seeking possession on the expiry of the period of lease. The findings of the Courts below, therefore, need no interference. 13. I see no force in the second appeal and the same is dismissed with no order as to costs. Appeal dismissed.