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Allahabad High Court · body

2010 DIGILAW 1834 (ALL)

Vishnu Sharan Pandey v. Sunil Kumar Bhalotiya

2010-05-28

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and the counsel for the respondent caveator. 2. This petition by the tenant is directed against concurrent decrees of eviction dated 2.3.2000 which was affirmed in revision vide order dated 17.2.2010. 3. It appears that the respondent landlord instituted a SCC Suit No. 12 of 1983 for eviction of the petitioner tenant from the disputed shop inter alia with the allegation that he was a tenant at Rs. 300/- per month and was inducted in the newly constructed building on 1.10.1982 and a due rent deed for 11 months was executed between the parties. Further it was stated that the premises was assessed for the first time w.e.f. 1.4.1988 and therefore, U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) did not apply. It was also asserted that without permission of the landlord he had inducted a partner and without his consent he had made material alterations and when his elder brother had gone to demand rent in March, 1983 the tenant assaulted the brother and despite registered notice he neither vacated the premises nor paid the rent. It was also asserted that tenancy itself came to an end on 31.8.1983 and therefore, the petitioner was liable to be evicted. 4. The petitioner tenant contested the suit admitting his tenancy at the rate of Rs. 300/- per month but contending that the premises was built in 1971 and was covered by the Act. It was also asserted that the landlord had obtained his signatures on blank paper saying that it was necessary for use in the Income Tax Department and nether he had inducted any new partner nor he had substantially damaged the premises.? The petitioner also denied that he was in arrears of rent from December, 1982 to 31.8.1983. 5. The trial court after determining the points in issue, allowed the parties to lead their evidence whereafter, recording a finding that it was a fixed term tenancy, the petitioner was in arrears of rent and that the notices were duly served, decreed the suit. The order was affirmed in revision. 6. Learned counsel for the petitioner has firstly urged that both the courts below have erred in holding that? the Act? would not apply assuming that first assessment was made w.e.f. 1.4.1988 even though from the evidence on record the constructions had already been made sometime in 1971. The order was affirmed in revision. 6. Learned counsel for the petitioner has firstly urged that both the courts below have erred in holding that? the Act? would not apply assuming that first assessment was made w.e.f. 1.4.1988 even though from the evidence on record the constructions had already been made sometime in 1971. 7. Both the courts below on the basis of documentary evidence in the nature of assessment order, notice by authorities under the U.P. Urban Land (Ceiling and Regulation) Act, 1976 etc. have found that it was a new building where the Act was not applicable. In fact, apart from bald allegations, no substantial evidence on this point was laid before the Court by the petitioner to rebut the documentary evidence which were in the nature of public documents. Therefore, the argument cannot be accepted.? 8. It is then urged that there was denial of execution of the rent deed and therefore, both the courts below could not have acted upon it. 9. It is worthy of note that the petitioner had admitted his signatures in the rent deed where certain conditions were imposed including that the tenancy was only for 11 months. The petitioner, apart from a bald denial did not lead any evidence of worth to show that his signatures were taken on blank papers and that he did not know about its contents. In fact clinching evidence was brought by the landlord to prove the execution of the rent deed. Thus, the argument cannot be accepted. 10. Lastly, it is urged that notice was never served on the petitioner and therefore, the suit could not have proceeded. 11. Apart from the fact that there is a categorical finding about service of the notice, assuming that there was any irregularity but yet as it was a fixed term tenancy, which came to an end on 31.8.1983, there was no necessity of notice. The Apex Court in the case of Dattonpant Gopalvarao Devakate vs. Vithalrao Marutirao, was considering a somewhat identical situation as to whether notice under Section 106 T.P. Act was necessary in a case of fixed term tenancy, where the landlord had even accepted the rent. The Apex Court in the case of Dattonpant Gopalvarao Devakate vs. Vithalrao Marutirao, was considering a somewhat identical situation as to whether notice under Section 106 T.P. Act was necessary in a case of fixed term tenancy, where the landlord had even accepted the rent. After considering the pronouncement of the Federal Court and its earlier judgments, it held that no notice is necessary if a lease of immovable property is determined under clause (a) of Section 111 of the Transfer of Property Act? (hereinafter referred to as the 'T.P. Act') by efflux of time limited thereby. In Smt. Shanti Devi vs. Amal Kumar Banerjee, the Apex Court held that in a case of a lease for a fixed period, the Court, before examining the validity of a notice under Section 106 of T.P. Act, would have to examine the necessity of the notice because in the absence of any proof of holding over within the meaning of Section 116 of the T.P.Act, the case would squarely fall within Section 111 (a) of the T.P. Act. It went on to hold that even if there is any allegation that the lease was month to month, the pleadings of the parties would not be determinative of the nature of the lease as they cannot alter intrinsic character of a lease by their pleadings.? More recently in Shanti Prasad Devi & another vs. Shankar Mahato & others, the Apex Court was confronted with a situation as to whether after expiry of a fixed term lease, acceptance of rent and allowing use and occupation of the lease premises would amount to "holding over", it negatived the contention in the following paragraph 19 of the report : "The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was "holding over" as a lessee within the meaning of Section 116 of the Transfer of Property Act." 12. In the present case, there is no provision for renewal of the fixed term tenancy and therefore, the ratio applies with greater force. 13. No other point has been urged. 14. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. 15. However, the petitioner may not be evicted from the disputed premises for a month from today.