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2008 DIGILAW 101 (UTT)

Sher Ram Arya v. The Chairman, Trade Tax Tribunal

2008-03-12

RAJESH TANDON

body2008
Judgment Heard Sri S.S. Chauhan, counsel for the appellant and Standing Counsel for the State of UUarakhand. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 11-3-2003 passed by the Add I. District Judge / 1st ET.C., Haldwani, District Nainital in Civil Appeal No. 23 of 2001 State of Uttarancha/ Vs. Sher Ram Arya. 3. Briefly stated, a suit was filed by the plaintiff / appellant being Original Suit NO.9 of 1997 Sher Ram Arya Vs. State of Uttarancha/ praying to the following effect: 4. According to the plaintiff, he is the landlord of the premises in question and the defendants are the tenants as per agreement executed between them on 11-12-1990, which was registered on 12-12-1990 before the Sub Registrar. The construction is situate at 6800 sq. feet land. According to the plaintiff, the parties have agreed for the rent @ Rs. 2/- per square feet of the coveted area of 1504 square feet land i.e. Rs. 3008/- per month for three years. The said period has commenced from 10th December, 1990 to 9th December, 1993. On 27th September, 1993, the plaintiff sent a notice to the defendant no. 1 for executing a new agreement from 10th December, 1993 enhancing the rent to the extent of 25%. In reply to it, the officer of the defendants sent a letter on 18-2-1994 agreeing for enhancement of the rent upto 25%. A written consent of the defendants regarding enhancement of 2'5% rent was got received by the plaintiff in the office of Member Vyapar Kar Adhikaran Haldwani. But, the defendants have failed to pay the same despite various demands. A registered notice was sent to the defendants on 19-7-1995 for realization of the rent, but the defendants have failed to pay the same. 5. The defendants have contested the suit by filing a written statement. The averments contained in letters dated 14th October, 1992 and 8-2-1994 have not been denied. Averments contained in Letters dated 14th October, 1992 for enhancement of rent upto Rs. 3/- per square feet is are quoted below: 6. In the letter dated 8-2-1994 is has been stated as under: 7. On the pleading of the parties, the trial Court has framed following issues: 8. On behalf of the plaintiff, Sri Sher Ram Arya has been examined as P.W.1. 3/- per square feet is are quoted below: 6. In the letter dated 8-2-1994 is has been stated as under: 7. On the pleading of the parties, the trial Court has framed following issues: 8. On behalf of the plaintiff, Sri Sher Ram Arya has been examined as P.W.1. 9. On behalf of the defendant, Sri Om Prakash Munsarim / Sadasya Vyapar Kar Adhikaran has been examined as D.W.1. 10. So far as issues no. 1 and 3 are concerned, the trial Court has relied upon Paper No. 42 Ga / 1 as well as reply letter dated 27-9-1993 by which sanction for enhancement of the rent to the extent of 25% was granted on 8-2-1994, therefore, the finding was recorded that from 10111 December, 1993 onwards the parties have agreed for enhancement of the rent to the extent of 25%, therefore, the issues no. 1 to 3 have been decided in favour of the plaintiff and against the defendant. 11. While deciding the issue no. 4 as to whether the suit is time barred, the trial Court has record a finding that the suit was not time barred. Relevant portion of the finding is quoted below: 12. So far as the issues no. 2 is concerned, the trial Court has recorded a finding that the liability to prove this point was on the defendant and in this respect the defendant has neither produced any evidence to prove nor has made any submission and since the premises had been taken in the capacity of an agent of Governor, therefore, the suit was not bad due to non-joinder or mis-joinder of parties. 13. While deciding the issue No.6, the trial Court has recorded a finding that the suit deserves to be decreed against the defendant for arrears of rent of Rs. 27.072 for the period December, 1993 to December, 1996 with regard to 225% of enhanced rent. 14. The trial Court has decreed the suit of the plaintiff on 3rd April, 2001. 15. Aggrieved by the judgment and decree of the trial Court, the defendant has preferred an appeal being Civil Appeal No. 23 of 2001 State of Uttaranchal and others Vs. Sher Ram Arya. 16. The appellate Court has allowed the appeal by recording a finding to the following effect: 17. Against the said judgment and decree, present appeal has been preferred. 18. Sher Ram Arya. 16. The appellate Court has allowed the appeal by recording a finding to the following effect: 17. Against the said judgment and decree, present appeal has been preferred. 18. Present Second Appeal has been admitted on the following substantial questions of law: "1. Whether offer made by the defendant / respondent which was accepted by the plaintiff / appellant and communicated to the defendant / respondent become a valid contract or not. 2. Whether the defendant / respondent was bound by principle of estoppel after the offer made by the defendant / respondent was accepted by the plaintiff / appellant and communicated to the defendant / respondent. 3. Whether the letter dated 18-2-1994 sent by the defendant / respondent was a offer under the contract or a invitation to offer." 19. So far as oral contract is concerned, it is well settled that the payment of rent is a matter between lessor and lessee and no registered deed is required. More over approval having been obtained for enhancement of the rent to the extent of25%, there was no occasion to travel beyond the same. Therefore, the appellate Court has rightly come to the conclusion that parties have agreed on 18-2-1994 for enhancement of the rent upto 25%. 20. Section 105 of the Transfer of Property Act provides as under: "105. Lease defined. - A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. - The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." 21. Section 17 of the Registration Act, 1908 provides for the Registration of the lease from year to year or for term exceeding one year, or reserving a yearly rent. Section 17 is quoted below: "17. Document of which registration is compulsory. Section 17 of the Registration Act, 1908 provides for the Registration of the lease from year to year or for term exceeding one year, or reserving a yearly rent. Section 17 is quoted below: "17. Document of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely :(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;" 22. As will appear from the aforesaid, it was a case of monthly tenancy, no registration was required and once from the demand dated 18-2-1994, the defendants have agreed to pay the enhanced rent, therefore, no occasion arises to resile from the same. 23. Standing Counsel has submitted that since the plaintiff has accepted the old rent, therefore, he cannot be allowed to say that he is entitled for the enhanced rent. 24. Looking to the plea taken by the defendant, if the rent on the old ref')t is being sent, which is due to the plaintiff, it will not amount to estoppel as the plaintiff was entitled to received the rent as it has fallen due to him. Of course, he can make a demand for his remaining amount of rent, I do not find any estoppel on the part of the landlord to claim the enhanced rent. The privilege, which has been given to the plaintiff to claim the enhanced rent, cannot be allowed to sacrifice. 25. The Apex Court has observed for enhancement of the rent of the landlord from time to time. 26. In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 after relying upon various judgments, it has been observed to the following effect: "13. 25. The Apex Court has observed for enhancement of the rent of the landlord from time to time. 26. In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 after relying upon various judgments, it has been observed to the following effect: "13. In Shyam Charan v. Sheoji Bhai (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. ..... .After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value." 27. Relying upon the judgment of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. JT 2004 (1) SC 410: 2005 (1) SCC 705: 2005 SCFBRC 99 in Achal Mishra Vs. Ram Shankar Singh reported in 2005(1) ARC Page 887 it has been observed as under: "We make it clear that the respondents shall be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord's entitlement cannot be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd., JT 2004 (1) SC 410: 2005 (10) SCC 705: 2005 SCFBRC 99." 28. It is also well established that the defendant cannot be allowed to approbate and reprobate at the same time as he has continued to be in possession after the expiry of the lease period with the understanding that he will pay 25% of the enhanced rent and as such, he cannot be allowed the resile with the said commitment. 29. It is also well established that the defendant cannot be allowed to approbate and reprobate at the same time as he has continued to be in possession after the expiry of the lease period with the understanding that he will pay 25% of the enhanced rent and as such, he cannot be allowed the resile with the said commitment. 29. In view of the aforesaid, substantial questions of law; 1) whether offer made by the defendant / respondent which was accepted by the plaintiff / appellant and communicated to the defendant / respondent became a valid contract or not; 2) whether the defendant / respondent was bound by principle of estoppel after the offer made by the defendant / respondent was accepted by the plaintiff / appellant and communicated to the defendant / respondent; 3) whether the letter dated 18-2-1994 sent by the defendant / respondent was a offer under the contract or a invitation to offer, are decided in favour of the plaintiff and the appeal deserves to be allowed. 30. Consequently, appeal is allowed. No order as to costs.