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2005 DIGILAW 173 (UTT)

Punjab National Bank Ltd. v. Tej Prakash

2005-05-16

IRSHAD HUSSAIN

body2005
JUDGMENT Per: Hon'ble Mr. Justice Irshad Hussain-Small Cause Courts Revision No. 18/2003 is filed by the tenant Punjab National Bank and Revision No. 2l/2003 is filed by the landlord Sri Tej Prakash. Both these revisions arise out of common judgment passed on 22-2-20m by the then Judge Small Cause Courts/Additional District Judge/ F.T.C. Dehradun in Small Cause Courts Suit No.7 i1998. Landlord's suit for ejectment. recovery of arrears of rent and mesne profits was decreed mainly on the basis of the findings that the building in question is exempt from the operation of V.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 ( for short 'Act') as its monthly rent exceeds Rs. 2000/-; that the tenancy stand terminated by notice dated 23-1-1998 while rejecting the tenant's plea of defective notice as well as its waiver by acceptance of rent and that the tenant thereof is liable to be evicted and to pay the arrears of rent etc (directed to be adjusted against the deposits made in the court by the tenant). 2. The submissions of the learned counsel for the parties give rise to the following points for determination in these revisions: (1) The trial Court did not consider in proper legal perspective the fact that enhancement of rent from Rs. 530/- per month to Rs.3.878/- under Section 21(8) of the 'Act' was sub-judice and the suit was without any cause of action on the ground that the 'Act' was not applicable to the building in question. (2) That notice of ejectment was illegal as it was not given by all the co-owner/landlords. (3) The finding that the notice dated 23-1-1998 of ejectment docs not stand waived, is illegal being based on improper appreciation of the conduct and intention of the landlord. (4) The denial to award the mesne profit at the enhanced rate was not legally justified. 3. Point No. 1:- S.C.C. Suit was filed on 12-5-1998. On landlord's application under Section 21(8) of the 'Act' the District Magistrate by his order dated 28-6-87 enhanced the rent from Rs. 530/- to Rs. 3.998/- per month. The appellate court by judgment and order dated 23-8-1988 modified the said order and rent stand enhanced to Rs. 3,878/- only per month. The tenant preferred a writ petition against the said judgment wherein. on 28-10-1988 partial stay of payment of rent to the tune of Rs. 530/- to Rs. 3.998/- per month. The appellate court by judgment and order dated 23-8-1988 modified the said order and rent stand enhanced to Rs. 3,878/- only per month. The tenant preferred a writ petition against the said judgment wherein. on 28-10-1988 partial stay of payment of rent to the tune of Rs. 878/- was granted and the tenant was obliged to deposit the rent in court @ Rs.3000/per month. The said order dated 28-10-1988 was however vacated on 19-5-1999 and the writ petition itself was subsequently dismissed on merit on 4-11-1999. These facts are not in dispute. 4. The suit was filed during the pendency of the stay order dated 28-10-1998 which stand merged in the final order of dismissal of the writ petition. The enhanced rate of rent exceeding rupees two thousand per month thus took effect from a date prior to the filing of the suit. The law on this point has been settled by the decision of the Apex Court in Purushottam Dass vs. Smt. Rajmani Devi; AI.R. 1970 Supreme Court 763. In that case a suit was instituted by a landlord for ejectment on a permission accorded by the Rent Control and Eviction Authority under the old Act of 1947. The permission was revoked by the Commissioner. That order was set aside by, the State Government. Their Lordships of the Apex Court in these circumstances held that on the date the suit was decreed, there was a valid permission in existence to sustain the decree for ejectment of tenant. The principle applies to the facts and circumstances of the instant case and the contention of the tenant that there was no cause of action to file the suit by taking benefit of the exemption clause under Section 2(1 )(g) of the 1\c1' inserted with effect from 26-9-1994 in the 'Act' by U.P. Act No.5 of 1995, was not sustainable. More so when the suit was filed the amending provisions were already in force. 5. Point No.2: Notice of ejectment dated 23-1-1998 was given by the landlord Sri Tej Prakash. In paragraph of the notice itself it was averred that Sri Purushottam Dass had 1/18 share in the building in question. whereas Sri Tej Prakash had 17/18 share in it. By a family settlement dated 22-5-1990 Sri Purushottam Dass's share was given to Sri Tej Prakash who became the sole owner/landlord of the building in question. In paragraph of the notice itself it was averred that Sri Purushottam Dass had 1/18 share in the building in question. whereas Sri Tej Prakash had 17/18 share in it. By a family settlement dated 22-5-1990 Sri Purushottam Dass's share was given to Sri Tej Prakash who became the sole owner/landlord of the building in question. In the written statement tenant pleaded that in view of the litigation between the co-sharers the matter was sub-judice and therefore Sri TejPrakash alone was not legally entitled to serve notice and even to file the suit for ejectment of the tenant. The record reveal that Sri Tej Prakash, on dispute being raised by Sri Purushottam Dass. filed civil suit No. 456/1991 for relief of declaration also and the same was decreed on 29-9-1995 (paper No. l03-C). First appeal filed by Sri Purushottam Dass was numbered as civil appeal No. 47/1995 and the same was dismissed per judgment and order dated 24-12-1996 (paper No.100-C). Sri Purushottam Dass then filed second appeal after the period of limitation before the Allahabad High Court and before the same could be admitted parties entered in to a co~mpromise on 24-2-1991-i (paper No. 101-C) and on its basis the second appeal was not pressed and it was dismissed by order dated 28-5-1998 (paper No. 102-C). The second appeal filed beyond the period of limitation has not been admitted till 24-2-1998 when the parties arrived at a compromise meaning thereby when the notice of ejectment dated 23.1.1998 was sent there was no stay against the judgment and decree dated 24-12-1996 of the first appellate court referred above. Even in the compromise dated 24-2-1998 it was mentioned that Sri Tej Prakasp is the sole owner of the building in question with effect from 1.6.1990 the date of family settlement. Reference of it was also made by the landlord in the said notice• of ejectment. In the face of these facts I see no substance in the argument of the learned counsel or the tenant-revisionist that the landlord Tej Prakash alone could not have legally served notice on the tenant. Even otherwise assuming that the notice was not given on behalf of one (1f the co-owner- landlord the decision of the Apex Court in Sri Ram Pastiche versus Jagannath and others; A.I.R. 1976 Supreme Court 2335 would show that the notice was good and valid. Even otherwise assuming that the notice was not given on behalf of one (1f the co-owner- landlord the decision of the Apex Court in Sri Ram Pastiche versus Jagannath and others; A.I.R. 1976 Supreme Court 2335 would show that the notice was good and valid. as one of the co-owner is authorized to given notice for termination of tenancy and file suit for eviction of tenant. 6. In view of above the notice sent by Sri Tei Prakash was not illegal and he was entitled to file the suit for ejectment of the tenant. The finding of the learned trial court was also legally justified. 7. Point No.3 :-Learned counsel for the tenant revisionist submitted that the notice of termination of tenancy on the basis of which the suit was filed has been waived by virtue of the landlord having served fresh notice on 24-5-1999 (paper No. 48-C) and another notice dated 12-11-1999 (paper No. 42-C) and further by reason of the landlord having accepted the payment of rent unconditionally. Both these subsequent notices were given during the pendency of the suit for ejectment wherein it had been specifically averred and reiterated that these notices were being sent duly reserving the legal right which had accrued to the landlord to file the suit for ejectment and further that the amount of rent deposited was being received subject to the rights and liabilities to be determined in the pending suit. There is absolutely nothing on record either in any document or in the statement of the landlord Tej Prakash which may in any way show that the intention (if the landlord was to treat the tenancy as subsisting on his withdrawing the money deposited in the court or in the event of his giving the notices subsequent to the notice of ejectment which is the basis of the suit for ejectment. It is also well settled that mere acceptance of rent after the period of termination of the tenancy docs not amount to waiver of notice to quit. It is also well settled that mere acceptance of rent after the period of termination of the tenancy docs not amount to waiver of notice to quit. Learned counsel for the landlord-revisionist cited a reported decision or the Allahabad High Court in the matter of Ram Krishna and other versus Jhaman Dos: 1986 (1) Allahabad Rent Cases 276 and wherein relying upon the decision of the Apex Court in the matter of Associated Hotels of India Ltd. versus S.B. Sardar Ranjit Singh; A.I.R. 196H Supreme Court 933 it was observed 1hat'when the landlord has after terminating the tenancy of a tenant instituted a suit Court his ejectment and is pursuing it. his intention is known. namely. that he docs not wish the tenancy to continue as a tenant of the accommodation. Simply because after the institution of the suit the rent for the period subsequent to the date or the termination of the tenancy deposited by the tenant is withdrawn by the landlord it can not he said that there was a intention to waive the notice. 8. There can he no doubt that the principle laid down in the reported decision sqm1rely apply to the facts or the case as the landlord has never intended to waive the notice to quit by acceptance or the rent sent/deposited by the tenant which was in fact been received/withdrawn under protested subject to the right and liabilities of the parties to be determined in the pending suit. Learned trial court has' considered the legal aspects of the matter in issue by referring to the reported decisions including the one' mentioned above and I am of the view that it was rightly held that the notice to quit was not waived and the tenant was not entitled to resort for benefit under the provisions or Section 1 B of the Transfer of Properly Act. 9. Point No.4 :- The landlord has chaimed mesne profits @ 11 Rs. 500/per day but the learned trial Court awarded the mesne profits at the rate or the rent or the building in question. Considering the attending circumstances and the facts of the case the learned trial court was of the view that the rent had been enhanced to Rs. 3.878/- per month which was just and proper ill1d on the same rate the mesne profit could very well be awarded to the landlord instead of Rs. Considering the attending circumstances and the facts of the case the learned trial court was of the view that the rent had been enhanced to Rs. 3.878/- per month which was just and proper ill1d on the same rate the mesne profit could very well be awarded to the landlord instead of Rs. 500/- per day. The discretion so exercised docs not appear to be arbitrary and injudicious and therefore I rind no cogent reason to interfere with the same and to say that the mesne profits deserve to be awarded at a higher rate. 10. For the reasons aforesaid both the revisions arc liable to be dismissed. 11. Both the revisions arc hereby dismissed and the tenant Punjab National Bank Ltd. is directed to vacate the building in question and hand over the possession to the landlord Sri Tej Prakash within a period of two months from today.